The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tomorrow Is National Legislator Integrity Day
Or so I've decided to call it, in honor of the 225th anniversary of the vote on renewing the Sedition Act of 1798.
The Sedition Act of 1798 famously expired on March 3, 1801, and purported to punish false and malicious statements about the Federalist President John Adams and the majority-Federalist Congress, not about the Democratic-Republican Vice-President Thomas Jefferson. This is often mentioned as evidence of the Federalists' partisanship in enacting the Act.
But (and this is much less well-known) it turns out that the Federalists tried to reenact the Act in January and February 1801, when it would have outlawed criticism of the newly-elected Democratic-Republican President and Congress. (At the time, the lame-duck session of Congress lasted until March 3.) The bill was defeated in the House by a 53-49 vote; nearly all Federalists voted for it, and all Republicans voted against it. The four Federalists who voted against consisted of one (George Dent) who voted against the 1798 Act, two who weren't in the House for the 1798 Act vote, and one who was in the House in 1798 but didn't vote.
The Federalists' stated arguments (see 10 Annals Cong. 916-939) seemed to chiefly be
- malicious falsehoods about the government are dangerous and valueless and deserve to be suppressed,
- the Sedition Act had actually been enforced properly, and thus merited renewal, and
- the Act protects speech by limiting common-law seditious libel to falsehoods, and by fixing a modest penalty for seditious libel.
The first and the third arguments were much like the ones offered originally in 1798.
Now there might have been some political posturing there, and perhaps the Federalists thought they had to do this to prevent charges of hypocrisy, even if deep down they wouldn't have supported the renewal. They might also have thought they had little to lose from the renewal, given the expectation that the new Administration would not enforce the law, given its militant hostility to the law in the past. Or, as with most human decisions, many legislators might have more than one reason for their votes. Still, I think on balance the positions of both the supporters and the opponents seemed quite consistent between 1798 and 1801.
To be sure, the arguments for the law strike me as mistaken: I think it's good that the Act wasn't renewed. Integrity, like loyalty, is an important virtue, but not the only important virtue—wisdom in determining the right policy is another, even when that means changing course from an earlier decision. "A foolish consistency is the hobgoblin of little minds." Still, it is on balance a virtue; legislative judgment shouldn't be just about whose ox is being gored. And the Sedition Act incident strikes me as a good story to remember this virtue by.
