How the First Amendment was saved

When the Sedition Act was signed into law on 14 July 1798, during the administration of Mr. Adams, the First Amendment was placed in immediate practical danger. That statute, one of the Alien and Sedition Acts adopted amid the Quasi-War with France, made it a federal crime to publish “false, scandalous, and malicious” writings against the government, the Congress, or the President. Between 1798 and early 1801, Federalist prosecutors and judges used it to fine and imprison critics—newspaper editors, political writers, and even Representative Matthew Lyon of Vermont, who was sentenced in 1798 for criticizing the President. The prosecutions demonstrated that the national government would treat political opposition itself as punishable. Had the practice continued after the change of administration, it would have set a lasting precedent that federal power might silence those who examined or censured public men and public measures.

I had opposed these measures from their inception. In the autumn of 1798 I drafted the Kentucky Resolutions, which declared the Sedition Act unconstitutional and beyond the powers delegated to the general government. The Virginia Resolutions, prepared by Mr. Madison, advanced the same principle. The people, we maintained, retained the right to discuss the conduct of their rulers freely; a republic cannot long survive if that right is subject to the discretion of those in office.

The election of 1800 decided the question in practice. I was inaugurated on 4 March 1801. The Sedition Act, by its own terms, expired at the close of the preceding administration. I did not seek its renewal. Within weeks of taking office I began issuing pardons to those still imprisoned or under judgment for having written against the government. Fines that had been collected were restored where possible. No new prosecutions for political criticism were commenced under any similar theory. The Republican majorities that entered Congress with me likewise declined to reenact such a law.

By these deliberate acts of forbearance the federal government itself abandoned the claim that it might punish citizens for speaking against its officers. The danger to the First Amendment had lain not in the erasure of its text, but in the establishment of an enforcement precedent. That precedent was refused. From 1801 onward the national authority ceased to treat criticism of the President or of Congress as a crime, thereby confirming in conduct what the Amendment had declared in words: that the liberty of the press and of speech remained beyond the reach of federal punishment for political opinion.

Addendum:

I wrote the Kentucky Resolutions in 1798 because the Alien and Sedition Acts broke the Constitution. Those laws gave the president power to deport people and made it a crime to criticize the government. The Constitution does not give Congress that power. The First Amendment forbids it. When the federal government takes powers that were never given to it, its actions have no force. That is what the Resolutions said.

I kept my name off them for a practical reason. The Sedition Act was in force. If I had publicly claimed authorship while serving as Vice President, I could have been prosecuted under the same law I was opposing. I asked that the origin stay secret so the protest would come from the Kentucky legislature, not from me. The principles mattered more than my name.

These Resolutions did not call for breaking the Union. They said the Constitution is an agreement among the states. Each state has the right to judge when the federal government has gone beyond the powers it was given. The remedy is for the states to stand against those excesses and bring the government back within its limits. That is how the Union is preserved, not destroyed. If the federal government can ignore the Constitution whenever it chooses, then the Constitution means nothing.

General Washington and the Federalists saw danger in state resistance. They feared it would lead to disunion or force. I saw the greater danger in letting the federal government expand its power without limit. Both of us wanted the Union to last. We disagreed on which threat was more serious. In the end, the people rejected the Alien and Sedition Acts at the next election. The laws faded. The Union continued.

Later writers used the Resolutions to support nullification and secession. My original purpose was to stop laws that punished free speech. It was not written to defend slavery or to justify leaving the Union over any local interest. Those who stretched the idea later applied it to different questions. The principles I defended were about keeping the federal government inside the boundaries the people set when they ratified the Constitution.

I acted to stop what I believed was a clear violation of the Constitution. I used secrecy because the law at the time made open protest risky. The goal was to hold the federal government to the limits the people had agreed to. That is the case I submit.