Thursday, January 31, 2008

The Fork in the Road from Political Limbo

“In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” – Thomas Jefferson, draft of the Kentucky Resolutions, October 1798

“Confidence” is nearly all we have heard now from the candidates for the presidency of both parties this year, coupled with vapid assertions of “experience,” “vision,” and the need for “change.” And the Constitution has been so adulterated with statist amendments and skewed by non-objective interpretations that its chains have less power to bind men from mischief than Styrofoam. To the statists whose ambitions compel them to “lead” and to mold America into a nation of sacrificing toilers and tax cows, the Constitution is a paper dragon.

The “mischief” Thomas Jefferson unequivocally condemned was the passage by Congress in the summer of that year of the Alien and Sedition Acts. Reading the Kentucky Resolutions in protest of those Acts, together with the more mildly worded Virginia Resolutions, penned by James Madison (and revised by Jefferson) and passed in the same year, one will be struck by intriguingly eerie parallels between their time and ours.

Let us examine these parallels.

In 1798, the United States was on the brink of war with its former ally, France. This was not the same France that had aided the nation in its struggle for independence from Great Britain. Gone was the monarchy whose principal motive for an alliance with the new nation was vengeance against Britain for having evicted France from North America in the French and Indian War. The French Revolution had replaced it with a “republic” that was more dictatorship than republic, sustaining itself in a welter of blood during the Reign of Terror and proving itself to be as belligerent as any Continental monarchy. At war with Britain, France, stung by the admittedly pro-British Jay Treaty of 1794 and treating it as a repudiation of the French-American treaty of 1778, refused to recognize the new American ambassador and began seizing American merchant ships thought to be trading with her enemies.

These seizures so outraged the reigning Federalists and other political elements that President John Adams sent a delegation to France to negotiate a new treaty that would obviate the possibility of war. Instead of being cordially received by the French government, the delegation was accosted by three anonymous agents (X, Y, and Z) who demanded a $240,000 bribe and the guarantee of a $10 million loan to France for the chance to speak with the foreign minister, Charles-Maurice de Tallyrand.

The diplomatic dispatches that detailed the insult were published in the U.S. and ignited popular anger against France. In May of 1797 President John Adams called a special session of Congress, cited the refusal to recognize the American ambassador and the XYZ affair, and not quite asked Congress for a declaration of war with France. Congress voted funds to enlarge the Navy in anticipation of hostilities with France.

In the meantime, anti-French public anger rose to fever pitch, so much so that in 1798, the largely Federalist Congress passed the Alien and Sedition Acts. There were four of them.

• The Alien Enemies Act empowered the government to deport aliens who came from a nation with which the U.S. was at war. At the time, there were approximately 20,000 French immigrants in the country, presumed to be pro-France and perceived by the Federalists as a potential source of armed rebellion. Also, there were thousands of Irish immigrants whom the Federalists presumed to be naturally anti-British and not happy about the Jay Treaty.
• The Alien Friends Act empowered the president, either on evidence or on mere suspicion, to deport any alien he deemed dangerous.
• The Naturalization Act changed the residency requirement for citizenship from five to fourteen years.
• The Sedition Act troubled then vice president Jefferson, Madison and others the most, for it virtually nullified the First Amendment to the Constitution, which established that Congress was prohibited from passing laws “abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble.” This Act drew the especial attention of Jefferson and Madison in the Kentucky and Virginia Resolutions. In the interests of clarification, Section 2 of the Sedition Act is cited below:

“And be it further enacted, that if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall 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 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, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”


“I may not write what I think,” wrote Jefferson. The Sedition Act was chiefly intended to silence the Republicans, whose party head was Jefferson himself, and most of whom had expressed sympathy with the French Revolution. Jefferson applauded the wars of “liberation” initiated by France. (Later in life he expressed reserved regret and disappointment that the French Revolution ended the way it did.) Until the crisis of 1798, Jefferson and Adams were close friends and political allies, but the Alien and Sedition Acts, and Jefferson’s principled opposition to them, worked to drive the men apart. For his part, Adams neither asked for nor encouraged the passage of the Acts, nor even initiated any action under them as the Acts gave him the power to do. But, as president, he signed them. Communication between him and Jefferson virtually ceased, not to be renewed for over a decade when both had retired from politics.

Some twenty-five men, mostly private citizens, editors and journalists, and even a Congressional representative, Matthew Lyon of Vermont, were charged and convicted under the Sedition Act. Lyon, a Republican, publicly excoriated Adams and the Federalists, and in October 1798 was indicted by a federal grand jury for encouraging sedition and bringing “the President and government of the United States into contempt.” He ran for reelection from his jail cell, and won.

All four Acts were allowed to expire in 1801 and 1802 under Jefferson’s first administration. Jefferson granted pardons to all persons convicted under the Acts, while Congress reimbursed them their fines with interest.

The undeclared war with France resulted in a few naval engagements between American and French vessels in 1798 and 1799, and even a rebellion in Pennsylvania against the federal property tax imposed by Congress to help pay for the undeclared war with France. Adams succeeded in ending hostilities with France in September 1800 when his envoys signed the Treaty of Mortontaine.

Jefferson’s draft of the Kentucky Resolutions is a document for freedom second only to his Declaration of Independence. Not as eloquent as the Declaration, its power lies in its hammering logic. It argues against the Alien and Sedition Acts from two distinct perspectives: general Constitutional principles, and states’ rights. Since Congress “being not a party, but merely the creature of the compact,” it had no leave to assume powers not expressly delegated to it by either the Constitution or the states that had ratified it. Therefore, the Acts were null and void. More importantly, Jefferson stressed the moral aspects of his opposition and projected the consequences of allowing the Acts to stand. Anyone, he wrote,

“…who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal; that the friendless alien has indeed been selected as the safest subject of a first experiment, but the citizen will follow, or rather has followed…”


Jefferson urged Americans and state legislatures to make their opposition to the Acts known before the people resorted to violence, claiming that government indifference to the claims of redress would

“…necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism…it is jealousy and not confidence which prescribes limited constitutions….”


In all eight Kentucky Resolutions, Jefferson adumbrates the relationship between the states and the federal government, and reasons that since the Acts encroach upon the right of the states to self-government, “a nullification of the act is the rightful remedy.”

“…Therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy….”


No other states adopted similar resolutions, as Jefferson and Madison had hoped. But the authorship and publication of the Kentucky and Virginia Resolutions served to brand the Federalists and so enlighten most Americans that the Federalists (political ancestors of the Democrats), already divided over policy issues, were swept from office in the 1800 general election, resulting in Jefferson’s presidency. (Unfortunately, half a century later the Kentucky Resolutions were employed by secessionists to rationalize their states’ “rights” to perpetuate slavery; Jefferson, who opposed slavery, predicted that this unresolved issue would ultimately result in civil war.)

Now let us examine our own dilemma.

Our embassies and diplomatic personnel have been attacked for decades by Islamic jihadists who do not approve of our treaties or arrangements with Mideast governments. (Whether or not the U.S. ought to have amicable relations with those governments is a separate issue.)

On September 11, 2001, the U.S. was attacked on its own soil by agents of Islamic jihad supported, funded and encouraged by governments demonstrably hostile to the U.S.

President Bush, although identifying the “Axis of Evil” purportedly responsible for the attack, did not ask Congress for a declaration of war. Congress, however, has ever since voted funds to prosecute an undeclared war not against the responsible governments, but instead against their agents (Al Qada, the Taliban). (Can you imagine John Adams asking Congress for funds to retaliate, not against the French Directory, but exclusively against French naval vessels and their officers, and X, Y and Z? No? Then you have there a measure of the gulf between the epistemologies of the Founders and modern political leaders.)

The president and Congress instituted “defensive” measures as a means to prevent further attacks by the enemy in this undeclared war, such as Homeland Security, the Patriot and Protect America Acts, mandatory searches and seizures at airports and cargo ports, calls for national identification cards and a government database of records on all U.S citizens. There are more controls and invasions of rights now, when we are in a state of undeclared war, than when we were actually in a state of declared war in the 1940’s.

The Campaign Reform Act (McCain-Feingold), a creature of Congress, and the Federal Election Commission, a creature of the Executive branch, are empowered to regulate freedom of speech as expressed in federal campaign contributions, and to punish infractions or violations of their own regulations, thus abridging the First Amendment.

Captured enemy combatants from Iraq and Afghanistan during this undeclared war have been incarcerated indefinitely. In times of declared war, such persons, if incarcerated on U.S. soil, have no right to the protection of civil law (such as legal counsel, trial by jury) since it is such law they were making war against. The U.S. did not try and convict every captured rank-and-file Japanese and German soldier in its POW camps here. They were sent home after the war. It was their military and political leaders who found themselves in the dock at the Nuremberg Trials.

José Padilla, an American citizen and convert to Islam, spent six years in civilian and military prisons before recently receiving a seventeen-year prison sentence for a mongrel collection of offenses, both national and civilian. Given the evidence against him (and John Walker Lynd, as well), he ought to have been tried for treason, but was not.

The nature of his conviction and sentencing was lost in the fog of an undeclared war. If we are not at war, after all, how could he be charged with treason, and working to destroy or cripple the government, and for an enemy that does and does not exist?

Immigration policies play as much a role now vis-à-vis national security as they did in 1798, when the Federalists feared the unregulated immigration of people they considered dangerous and susceptible to mob rule, while the Republicans welcomed open immigration and saw no jeopardy in it. Now it is the Democrats who favor unregulated immigration while the Republicans wish to control it.

Race also plays a role in the immigration issue, just as it did in 1798. This time the Democrats favor Mexicans, because as illiterate or semi-literate and unschooled as most of them are, they can be exploited as a massive voting block for politicians who favor the implementation of “free” health care and other “social services.” (The taxpayer-supported public healthcare infrastructure is as burdened with “free” care for uncounted Mexican illegals as Britain’s welfare state is burdened with subsidizing anti-British illegal or semi-legal Muslims.)

Curiously, neither Congress nor the free-immigration advocates have ever said a word about revising immigration policies to allow, for example, the unlimited entry of educated, literate, productive Europeans desperate to escape the spreading, omnivorous tyranny of the European Union. Is this a policy of selective racism?

What does this surreal march of events demonstrate?

That the U.S. is in a state of moral and political limbo.

We are at war, but not at war. At the cost of lives and billions of dollars, our troops are fighting individuals and gangs of armed thugs, not armies of the enemy. Not a finger has been lifted to punish or destroy the governments that sponsor terrorism or that were responsible for 9/11. Iran, Syria, North Korea, and even Pakistan remain intact. In the meantime, and not unrelated to foreign policy issues, our remaining liberties are being whittled away in a costly and futile effort to foil future attacks, forcing searched and frisked traveling Americans to pay the price for a dubious “defense” while the guilty parties overseas are left unmolested to continue their anti-American policies.

Censorship is sneaking in through the back door in the name of national security and multiculturalism. Congress quibbles over the terms of the Protect America Act, which at least would allow the intelligence agencies, providing they are run competently, to gain knowledge from overseas of further plots against the U.S. It is more than hypocritical that Congress postures as guardian of Americans’ privacy, but is always ready to stick it to them in taxes, earmarks, and entitlement programs.

All the candidates for the presidency, Republican and Democrat, repeatedly express their self-confidence to do a “good” job in “managing” the country’s economy and foreign policy, and ask voters to have confidence in them. Most of them, excepting Barack Obama, claim that their political experience is an asset. What experience is it that they are boasting of? Being adept in the behind-the-scenes machinations to turn the country socialist? Of being able to successfully promote the ends of special interests? Of pandering to venal segments of the electorate, such as assuring the baby boomer generation of their government “entitlements”?

9/11, which was Islam’s declaration of war on the U.S., may as well have never happened, to judge by the priorities of the presidential candidates, not to mention the behavior of politicians of both parties over the last seven years. The Democrats don’t wish it to have happened; ergo, it never happened, and we must pull our troops from Iraq and Afghanistan, and pretend there is no enemy. And the Republicans don’t know how to fight an enemy they acknowledge exists, except to muck up their obligation to defeat him by lowering the standard of victory, which is a working commode in every Iraqi home.

People are falling for Senator Obama, who to date has said absolutely nothing substantive about his White House policies. But his endorsement by Senator Ted Kennedy should be a tip-off about what policies he would adopt. Kennedy wants to establish universal, mandatory, comprehensive health care, and for all Americans to “do something for their country.” If Obama is as fresh and hopeful as he and his supporters claim he is, the last thing he would want is an endorsement from the embodiment of malicious evil, that aging, older generation icon of complacent corruption, Ted Kennedy. That he welcomed the endorsement, revealed that Kennedy has been his Senate mentor, and did not deny that Kennedy’s goals are his own, ought to warn people about Obama’s character and intentions.

His unstated goals are also the goals of power-hungry Hillary Clinton, for whom touchy-feely collectivism “takes a village,” and also a nightstick-happy cop. All she, Obama and their rival candidates are asking for is one’s “confidence.” What all of them deserve is a vote of “no confidence.”

What can explain the unreality of the American political scene is that it is the climax of decades-old pragmatism, ingrained moral relativism that allows a policy of evasion and obfuscation on principle, and the mutual altruist/collectivist ends of the major political parties. What Ayn Rand called the “cult of moral grayness” is the ideal ambience of statists, in which things can be A and non-A, either simultaneously or by switching back and forth, depending on the expediency of the moment.

The Concise Oxford Dictionary defines limbo as a condition of neglect or oblivion. In a religious sense, it is also a transit point between heaven and hell. A political leadership that adopts such a policy leaves the country in a moral limbo, in which nothing is resolved or can be resolved. But a nation cannot remain in stasis for long. It must move.

Thomas Jefferson, James Madison and others of their time refused to allow the nation to inure itself to the limbo of semi-tyranny sired by the Alien and Sedition Acts, and took action. Jefferson wrote what he thought. It made a difference. Ideas matter.

Hard as one might search today, one cannot see a Jefferson towering above the Lilliputians who pass for the nation’s moral and political leadership. But there are only two directions for the nation to take now: to the heaven on earth of freedom, or to the hell on earth of tyranny. Will Americans demand that their political leadership be bound by the Constitution, or will they allow themselves to be bound by collectivism? Will they place their confidence in the efficacy of the principles of freedom on which this country was founded, or in the despot who promises them thoughtless security?

4 comments:

Cedar Bristol said...

That was a well-written and informative post, but I have to heckle you on a couple of points

Point A: You wrote: "...Now it is the Democrats who favor unregulated immigration while the Republicans wish to control it. "

I would be thrilled if you could name a single democrat who has actually declared himself in favor of unregulated immigration. A link would be great.

Point B: "...the Constitution has been so adulterated with statist amendments and skewed by non-objective interpretations that its chains have less power to bind men from mischief than Styrofoam. "

I've been meaning to bother you about this one for a while now. You have a historical education which leaves mine way behind and you've been in the military which means you've read a lot and must have at least a little firsthand experience of life outside the protection of our constitution. Are you trying to say there isn't a world of difference between the present day US and other places and times? If you do see such a difference, which I certainly do, I don't see how you can hold the view that the constitution does not continue to exercise a great deal of force against the kind of mischief that has run rampant throughout most of human history.

I think that if we ever actually reach the point where the constitution is less substantial than styrofoam, we'll see no more of the "problem" of illegal Mexican.

Anonymous said...

Hi, Cedar: I've listened to many Democrats imply that they're all for the open immigration of Mexicans and of no one else (except maybe Haitians). Kennedy especially I get the strong sense that he just wants to screw the country by giving protection and "rights" to hordes of illiterate, non-English speaking sweathogs (and to keep them down on the farm, or in the fields). Do not take this remark as Mexiphobic; half the guys in my Air Force basic training flights were Mexicans, and I got along fine with them.

There is a big difference between the U.S. now and the rest of the world. The nation closest to us in culture and history and values is sinking fast into a stagnant Big Brotherish nation: Britain. And, if the Constitution had any real power to throttle statism, we wouldn't have to worry about not filing tax returns or obeying any of the other mandatory, statist laws. The U.S. of 1800 and 1900 and 2007 are worlds apart.

Ed Cline

madmax said...

Ed,

I am curious what you think of the often made Objectivist arguments for open immigration? While I agree that in a free, non-multiculturalist state immigration would not be an issue. In our present state it is a big issue. Even going beyond the dangers of Islamic immigration, the United States is fast being turned into a 3rd world nation and I think this is what the liberals want (as long as its not in their neighborhood). I'm for open immigration as an ideal to move towards but I don't think it is an ideal in today's semi-socialist, philosophically corrupt context. But I don't know what intermediate steps are ideal. The present immigration debate leaves me baffled.

Anonymous said...

MadMax: I am pro-free immigration, with the proviso that anyone who comes here take an oath to uphold the pro-individual rights, pro-freedom principles on which the country was founded. That isn't being demanded now. Nothing is being demanded of anyone who moves here, except to register his existence with the government (social security numbers, tax filing etc.). Most of the Mexicans who come here are here for the jobs, but othewise they are only a rung less clueless about the nature of the country's origins than the average progressively-educated American. Most of the Europeans (Brits, Dutch, Asians, etc.) who have managed to come here at least bring with them more skills and ability than being able to pick crops in California or Arizona.

Yes, I think the liberals (read socialists, progressives, Obamas, Clintons, Kennedys) down deep hate this country so much that they want to turn it into what you call a "third world" nation -- just another nation on the block, nothing special about it, so it ought to knuckle under and become an obsequious member of the "global village." America is a great country, and they hate greatness of any legitimate, rational kind.

On the other hand, technically, I'm against "open immigration," because the kind the liberals mean is the kind that would make Mexicans dependent on the State for their legitimacy in terms of health and social services. This threat is overlooked by many Objectivists. I don't see an answer to the conundrum. It's a choice of evils in a disintegrating civilization. Ed Cline