A renowned constitutional scholar regaled attendees of an online lecture hosted by the University of Colorado Law School late last month with the story of the Sedition Act and the rocky transition of power between the nation’s second and third presidents. Yale Law School professor Akhil Reed Amar’s presentation drew parallels between this year’s anxious shift from the presidency of Donald Trump to President Joe Biden’s administration.
Amar read from his newly published book, “The Words That Made Us: America’s Constitutional Conversation, 1760-1840,” and provided commentary focused on the young country’s first politically contentious presidential metamorphosis. “The book is all about constitutional conversation,” he said. “This is a talk about America’s first peaceful — barely — transfer of power.”
Telling a story that ranged from the nation’s adjustment to the death of its first president, George Washington, and ordinary political rivalries among those who sought to succeed him to the French Revolution, Amar explained how the early American constitutional order avoided a potentially cataclysmic collision between partisans.
An era rife with intrigue and intense jockeying for power began, Amar explained, on July 14, 1798. “Nine years to the day after the storming of the Bastille, President John Adams signed an American Sedition Act into law,” Amar said. “The 1789 Parisian incident had set into motion events that ultimately toppled a king and killed King Louis XVI, his queen, Marie Antoinette, and their heir to the throne, the Dauphin. Adams’ signature likewise led to his own ouster, but the president, his lady, Abigail, and their heir, John Quincy, got to keep their heads.”
Unlike France, which experienced a bloody revolution, the U.S. did ultimately experience an orderly shift of power away from Adams and his Federalist Party to then-Vice President Thomas Jefferson’s Democratic-Republicans. “America showed itself vastly superior to revolutionary France, but the events of 1798 to 1801, America’s first peaceful transfer of power from one presidential party to another, were in fact more fraught than is generally understood today,” Amar said. Not only that, those historical episodes were a harbinger of incidents more than two centuries later. “In myriad respects,” Amar said, they “cast an eerie light on the not-entirely-peaceful transfer of presidential power in 2020 to 2021.”
Adams did not ask Congress to enact the Sedition Act. Nevertheless, under the possible influence of his wife, who had lamented “base and unfounded calumny” about her husband and aware of former president Washington’s support for the bill, the second president signed a law that would become, according to historian Joseph Ellis, “unquestionably the biggest blunder of his presidency.” To Amar, the Sedition Act was akin to stirring up a hornet’s nest. “Under the terms of the Sedition Act, anyone who dared to criticize the federal government, the president, or the Congress risks a fine of up to $2,000 and a prison term of up to two years,” Amar said. Interestingly, Congress specified that the law would expire on March 3, 1801, “a day before the new presidential term would begin.”
On the other hand, the author said, the Sedition Act offered no shield at all against criticism of the vice president. “Venomous criticism, even if knowingly false, and inciting violence that targeted the vice president was fair game under the law,” Amar said. “In the impending 1800 electoral contest between Adams and his main rival, Thomas Jefferson, who was also Adams’ sitting vice president, Adams and his Federalist Party allies could malign Jefferson, but Jefferson and his allies, the Democratic-Republicans, could not reciprocate with equal vigor.” This situation, Amar said, is not dissimilar from Trump’s apparent distrust of his own vice president. “You should already be thinking, ‘oh, Trump, Pence.’ They [were] technically running together and not against each other, but [there are] some interesting and eerie parallels,” Amar said.
The constraints on efforts to restrict the speech of Federalist opponents, Amar continued, did not include a ban on criminal penalties. During the 18th century, he said, the concept of a “free press” meant only that journalists and publishers could not be “licensed” or “censored before publication.” They could, though, be punished for anything that was printed. “On its surface, the act seemed modest,” Amar said. “It criminalized only ‘false, scandalous, and malicious’ — that’s a quote — writings [and] utterances that had an ‘intent to defame’ or comparable acidic motivations.” Yet the Sedition Act created even more problems for those engaging in political speech by failing to answer other questions. “What if the falsehood was a good faith mistake or a rhetorical overstatement in a vigorous political give and take? Could an honest mistake or a mere exuberance ever justify serious criminal liability and extended imprisonment? Also, who would bear the burden of proof?”
Amar told the tale of several defendants prosecuted and punished under the Sedition Act, including editor and publisher Benjamin Franklin Bache, writer James Callender and Vermont congressman Matthew Lyon. Bache, the grandson of Benjamin Franklin, had labeled Adams as “blind, bald, crippled, toothless [and] querulous” and accused him of nepotism and of being ambitious for a monarchy. In fact, Adams had appointed his son-in-law to an important federal position at the Port of New York, Amar said. Bache died while under indictment, having contracted yellow fever during a pandemic. Going after him was, Amar said, “the 18th century equivalent of a Republican president today seeking to imprison the editors of the Washington Post or a modern Democratic president aiming to criminalize the publishers of the National Review.”
Callender had “broke the Alexander Hamilton sex scandal story in 1797 and would later, in 1802, expose Jefferson’s affair with his slave mistress, who was also his deceased wife’s half-sister,” Amar said. The “trashy and talented journalist” described the Adams administration as a “continual tempest of malignant passions” and called Adams a “repulsive pedant, a gross hypocrite and an unprincipled oppressor.” The British expatriate had accused Adams of having “never opened his lips or lifted his pen without threatening or scolding.”
Lyons, who was reelected to the House of Representatives after serving a four-month jail sentence imposed under the Sedition Act, had accused Adams of having “swallowed up every proper consideration of the public welfare in a continual grasp for power and an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice.” “How exactly could Lyons prove in a courtroom the technical truth of these words, blending, as they did, fact, opinion, analysis, interpretation and rhetoric?,” Amar said.
Adams, Amar said, had “mindlessly and mercilessly” pursued political opponents under the Sedition Act. “He and his minions hounded tart but peaceful speakers and printers whose only real crime was dislike of John Adams, his party and his policies in cases whose facts were miles apart from treason, riot or mayhem,” Amar said. “Under the ridiculously strict standards of his own administration, a young John Adams himself should have been fined [or put] in prison back in the 1760s and 1770s for his vigorous denunciations” of Great Britain’s royally-appointed governor of the Massachusetts Bay Colony.
Moreover, the Massachusetts lawyer and diplomat-cum-president, Amar explained,” was “a very thin-skinned guy.” “When he was out of power,” Amar continued, “he had said all sorts of critical things about those in power, but now that he’s in power, he’s going to be very touchy. If you’re starting to think, ‘that reminds me of someone else who was recently president,’ that’s what I want you to think.”
Jefferson, who had helped to finance Callender’s newspaper, sought to exploit state legislatures as places where spoken rhetoric that attacked Adams and his Federalists or the Sedition Act itself could not be punished. Newspapers “would enjoy absolute immunity if they merely told their readers what had been said in the special speech spots in state capitals,” Amar said. “Thus [James] Madison and Jefferson quietly composed resolutions for adoption in the Virginia and Kentucky legislatures.” After the Virginia General Assembly passed, on Christmas Eve 1798, a resolution condemning the Sedition Act as a “palpable and alarming infraction of the Constitution” aimed at undermining speech — “the only effectual guardian of every other right” — and urging “universal alarm,” many newspapers around the nation “reprinted or excerpted Virginia’s protest,” Amar said. “It did not matter whether the two statesmen immediately convinced a majority of state lawmakers, just as it did not matter whether they immediately convinced a majority of sitting Supreme Court justices. What mattered most in 1800 to 1801 was winning a majority of Electoral College votes.”
The quest for those votes was the next crisis for American political regularity, Amar said. “The American people, having now seen quite clearly what freedom meant to Adams and what freedom meant to Jefferson, decided between these two icons of 1776. They decided for Jefferson. But there was a catch involving palace intrigue eerily similar to some of the strangest moments that would unfold in America 220 years later, in January 2021.”
Jefferson had been a political rival of Alexander Hamilton, “who was truly Washington’s prime minister,” according to Amar. During the 1790s, a troublesome question that worried the nation’s political elites was how the presidency would devolve if both Washington and Adams were to become disabled, die or resign. “The Constitution’s vacancy clause left this question for the federal legislature to decide,” Amar explained, but “the text authorized an ex officio designation” of a successor.
Jefferson loyalists in Congress, led by Madison, sought to designate the secretary of state — a post then held by Jefferson — as the successor if both the president and the vice president died in office. Meanwhile, backers of Hamilton, who was then serving as secretary of the Treasury, disagreed. Eventually, “after bouncing between House and Senate and various committees thereof, the bill as finally adopted in 1792 placed America’s top senator, the senate president pro tem, first in line, followed by the speaker of the House,” Amar said. “So that’s similar to today’s statute, but [in] reverse.”
When the election of 1800 came, Jefferson’s party won, defeating Adams’s Federalists by eight electoral votes. However, the Democratic-Republicans had, according to Amar, “blundered slightly.” The Constitution did not, at that time, provide for separate voting for the vice president. Instead, the person who finished second in the presidential race would take that position. “The Democratic-Republicans aimed to catapult Jefferson to the presidency and his running mate, New Yorker Aaron Burr, into the vice presidential slot, but every Jeffersonian elector also voted for Burr,” Amar said. “The party should have designated one elector to throw away his second vote to ensure that Jefferson would out-point Burr but somehow failed to do this.”
The resulting tie between the two men had to be resolved by the lame-duck Federalist House of Representatives, which eventually un-tied the race “thanks in no small part to Hamilton’s appeal on behalf of Jefferson,” Amar said. Notwithstanding “fierce feuds” with Jefferson and even a “personal dislike” that both Hamilton and Jefferson felt for each other, Hamilton said that Jefferson was an “honorable and capable public servant committed to his country’s welfare,” while describing Burr as a “charming but corrupt wildcard who might sell the nation out to the highest bidder.”
There was, for a time, uncertainty about whether Hamilton’s letter would sway the Federalist partisans in the House, Amar said. That, in turn, led to questions about what Adams might do. Would he remain in office past the end of his term? Or would the succession law “spring to life” when Adams’ term ran out, allowing the Senate’s president pro tempore to become ensconced in the White House? “What about the argument that the succession act was, in fact, unconstitutional” because members of Congress are not “officers” of the U.S. government?,” Amar rhetorically asked.
During the debate about how best to proceed if the House of Representatives could not achieve sufficient consensus — a majority of the then-existing 16 states’ delegations to the House of Representatives would be needed to elect a president — a duo of newspaper editorials in which an anonymous writer urged Congress to enact a new succession law that would designate the president in those circumstances were published and reprinted. The author “did not explicitly say what officer should fill the blank, but the obvious choice, legally and politically, for the lame duck Federalists was the secretary of state,” Amar said. “After all, he was the highest ranking officer, except for the arguable possibility of the treasury secretary and chief justice, but the position of chief justice was vacant in early January.”
The sitting secretary of state at that time was, Amar said, “the Federalists’ most popular and able politician — Jefferson’s old rival and first cousin, once removed, John Marshall.” “It was an elegant and brilliant idea, a political and legal stroke of genius – evil genius – from a Jeffersonian perspective.” “Whose genius idea was it to crown John Marshall?” Amar said that, according to many modern historians, it may well have been Marshall himself.
Meanwhile, Jefferson had another move up his sleeve. Amar said that he had written to then-Virginia governor James Monroe, “bristling with concern.” Monroe had figured out that Marshall was “a likely beneficiary” of the succession law essays, Amar said, and urged Jefferson not to quietly accept any House designation of the future chief justice as president. “If this isn’t beginning to conjure up images of January 6, wow, what would?,” Amar said. “Jefferson responded by treating the situation as 1776 all over again, rallying his troops and rattling his saber just like in the American Revolution,” Amar continued. “In mid-February 1801 he told Monroe that quote that he ‘thought it best to declare openly and firmly [to] one and all that the day such a succession act passed the middle states would arm and no such usurpation, even for a single day, should be submitted to.’”
“This was not casual chit-chat,” Amar continued. “In 1801 Monroe was the sitting governor of Virginia, which of course bordered on the new national capital. Jefferson was telling Monroe to ready his militia to march on Washington DC with weapons and Monroe was listening carefully.” But Jefferson did not have a legal foundation for this plan. The essay “gambit was surely sharp dealing, given that it aimed to give the presidency to neither Jefferson nor Burr, but how was it illegal? The Jeffersonians themselves had created the mess that Horatius had slyly offered to tidy up. After all, Jefferson himself and his party had picked the ethically challenged Aaron Burr to be, under their own plan, a heartbeat away from the presidency.”
In any event, historians have wondered what would have happened if either Adams or Marshall had attempted to act as President on March 4, 2001. Would, Amar asked, “militias in Virginia and Pennsylvania respond with force as threatened?” Would “the self-proclaimed acting president Adams or Marshall counter with federal military force? Would Federalist New England militias mobilize and march south? With the irreplaceable George Washington no longer alive to calm the country and rally patriots from all sides to the unionist banner, would the American constitutional project ultimately collapse in an orgy of blood and incrimination, like so many Greek republics of old and the fledgling French republic of late?”
None of those dark possibilities, of course, came to fruition. “Suddenly, as if a strong blast of fresh air abruptly swept across the capital city,” Amar said, the deadlock in Congress was broken. On Feb. 11, 1801, Congress met in Washington to open the electors’ ballots in a proceeding over which Jefferson presided. After a week of effort and 36 ballots in the House of Representatives, Jefferson prevailed over Burr. When the author of the Declaration of Independence was inaugurated, Adams was not there. Like Trump, he had left the capital city before the ceremony in which Marshall swore in Jefferson to the presidency.
Asked whether the events of 1800-1801 were a greater threat to the nation’s political stability and constitutional system than were Trump’s actions during and after the 2020 presidential campaign and the January 6 insurrection, Amar was unequivocal.
“The system was so much more fragile at the beginning,” he said. “We didn’t have the traditions and America [was] a puny place on the edge of civilization being polarized by the two great powers, England and France. Think of it like the Cold War and we’re just a sort of little satellite regime.” Amar said that, while the American political system was not “consolidated” in 1800-1801 and while Adams and Jefferson “were not perfect,” not least, in Jefferson’s case, because he owned slaves, “they were undeniably great men who had lifetime records of extraordinary public sacrifice and service, extraordinary intellects, and [were] deep patriots.” By contrast, he said, “I don’t think any of that is true of Donald Trump. I think he was a singularly malignant and unprecedented force in the American presidency. I think he’s deranged in certain ways, truthfully, and in it only for himself and therefore a more mortal threat to the republic.”
As to the legacy of the Sedition Act, Amar pointedly urged his audience to recall that incident in American legal history as a reminder of the vital role of the First Amendment in our society. “I want my friends on the left, as well as the right, to really value free speech and protect it, even of those that they might not agree with, because it’s so important that people across the spectrum absolutely hold fast to robust, uninhibited, wide open freedom of expression.”
Amar’s presentation was the latest in John R. Coen Lecture Series, which was established in 1955. Previous lecturers have included former White House counsel and Skadden Arps partner Gregory Craig, Yale scholar William Eskridge, Jr., University of California-Davis law professor Angela Harris, Yale Law School professor Dan Kahan, Steptoe and Johnson partner Lucinda Low, University of Chicago constitutional law scholar Geoffrey Stone, Eric Talley of Columbia Law School, famed author and alternative dispute resolution expert Dr. William Ury, and University of Arizona law professor Robert Williams.