The Origins and Foundations of the First Amendment and the Alien and Sedition Acts

Abstract

The Origins and Foundations ofthe First Amendment and the Alien and Sedition Acts Murray Dry We seem to accordmore importance to the FirstAmendment freedoms, and the Bill ofRights in general, today than the American Founders did. Where they focused on the structure and powers ofgovernment, we focus on individual rights against government. I overstate the differ­ ence in orderto make this point: the best way to study the FirstAmendment freedoms ofreligion and speech is to examine their relationship to the purpose of government as a whole. This article has three main parts. In part one, I consider the significance of what could be called our country’s dual founding: by Puritan settlers in the early seventeenth century and then by rights-based constitution-makers in the latter part of the eighteenth century. In part two, I look to the state constitutions for instruction about the meaning of religious freedom and free­ dom ofspeech. In part three, I examine the FirstAmendment, from the federal Constitution and the Bill of Rights to Madison’s response to the Alien and Sedition Acts. I. Origins and Foundations of Our First Amendment Freedoms In his introduction to volume one of De­ mocracy in America, published in 1835, Alexis de Tocqueville emphasized democratic revolution as the characteristic ofhis age. “This whole book has been writtenunderthe impulse of a kind of religious dread inspired by con­ templation of this irresistible revolution....”1 Tocqueville calls for a “new political science...for a world itselfquite new.” More­ over, he viewsAmericaas the country to study, since “I saw in America...the shape ofdemoc­ racy itself...its inclinations, character, preju­ dices, and passions....”2 Convinced that freedom cannot survive without good mores, and that good mores re­ quire religion, Tocqueville is most impressed with the way religion supports freedom in America. In France, on the otherhand, “[m]en ofreligion fight against freedom, and lovers of liberty attackreligions...honest and enlightened citizens are the enemies of all progress, while men without patriotism or morals make them­ selves the apostles of civilization and enlight­ enment!”3 130 JOURNAL OF SUPREME COURT HISTORY Tocqueville’s concern for the opposition between religion and freedom in France may account for his discussion of the Puritans in chapter two, which is titled “Concerning Their Point of Departure and Its Importance for the Future of the Anglo Americans.” Remarking on the importance of origins for understand­ ing human beings, and then analogizing nations to human beings, Tocqueville calls this chap­ ter, on the Puritans, “the germ of all that is to follow and the key to almost the whole work.”4 The Puritans came from England with a common language, the germ ofdemocracy, and a high level ofeducation. The education comes from their religion: “[I]nAmerica it is religion which leads to enlightenment and the obser­ vance of divine laws which leads men to lib­ erty.”5 Thus, the Puritans present Tocqueville with “a marvelous combination,... the spirit of religion and the spirit of freedom.” Religion regards civil liberty as a noble exercise of men’s faculties, the world of politics being a sphere intended by the Creator for the free play of intelli­ gence. Religion, being free and pow­ erful within its own sphere and content with the position reserved for it, real­ izes that its sway is all the better estab­ lished because it relies only on its own powers and rules men’s hearts without external support.6 Tocqueville’s discussion of Puritan com­ pacts and their criminal codes complicates the relationship between liberty and religion how­ ever. Here is a part of the Mayflower Com­ pact, which he quotes: We whose names are underwritten ...having undertaken for the glory of God, and advancement ofthe Christian faith, and the honor of our king and country... do enact, constitute, and frame suchjust and equal laws ...as shall be thought most meet and convenient for the general good ofthe colony....7 After quoting a part ofConnecticut’s crimi­ nal code—“If any man after legal conviction shall have or worship any other God but the Lord God, he shall be put to death—,” Tocqueville adds: Blasphemy, sorcery, adultery, and rape are punish[able] by death; a son...