Posted on 11/21/2001 8:16:53 PM PST by Sir Gawain
Date: Mon, 19 Nov 2001 18:22:50 -0600 From: Jon Roland <jon.roland@constitution.org> Subject: 2001 Patriot Act echoes 1798 Alien Act 2001 Patriot Act echoes 1798 Alien Act The controversy arising from the hastily-passed "USA Patriot" Act and associated presidential executive orders strongly resembles that which arose from the 1798 Alien and Sedition Acts, especially the Alien Act of June 25, 1798,[1] which tried to grant to the president, then John Adams, the authority to order foreign nationals he deemed "dangerous" to depart, to imprison them if they did not, to forcibly deport them, to imprison them if they returned, and to disable their rights to become citizens. The Act was targeted on French nationals, because France was attacking U.S. shipping, and Irish nationals, because the Irish were engaged in a fight for independence from Britain. The Act was, however, used to persecute many would-be citizens who criticized the Adams administration, as was the Sedition Act,[2] which was used to persecute the editors and publishers of opposition newspapers such as the Philadelphia Aurora. The acts encouraged a reign of terror against critics, including Thomas Jefferson and James Madison, who responded with such measures as the Kentucky[3] and Virginia[4] Resolutions of 1798, the Kentucky Resolutions of 1799,[5] and the Virginia Report of 1799,[6] which defined the "Doctrine of '98" and led to the defeat of John Adams and election of Thomas Jefferson in 1800, in what became called the "Revolution of 1800", and many considered that to settle the issue that the Alien and Sedition Acts were unconstitutional.[7] But a Sedition Act was again adopted May 16, 1918, during WWI,[8] making it a crime to criticize the government or Constitution of the United States. During the Red Scare of 1919-20 U.S. Attorney-General A. Mitchell Palmer and his special assistant, J. Edgar Hoover, used the Sedition Act and the Espionage Act of 1917 to persecute leftist reformers, arresting more than 1500 for disloyalty, although most of them were eventually released. However, Emma Goldman, Alexander Berkman, Mollie Steimer, and 245 other persons were deported to Russia. When President Lincoln tried civilians in military courts during the 1861-65 War of Secession, the Supreme Court held, in Ex Parte Milligan 71 U.S. 2 (1866): "Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism...."[9] The boundary of when persons on U.S. territory could be tried by military courts under the Articles of War rather than as criminals was tested in the Supreme Court on a writ of habeas corpus in Ex Parte Quirin, 317 U.S. 1 (1942),[10] which upheld military prosecution of 7 German spies or saboteurs who had entered U.S. territory covertly. The issue of extended detention of persons of foreign descent was decided in the Korematsu case, which affirmed the detention of a Japanese-American who protested the detention of Japanese Americans, although he was later found not guilty at the district court level. This case is now generally considered an embarrassment for U.S. case law, although it has not been overturned. These and other precedents support full due process rights for foreign nationals who are in the United States legally, leave a grey area for foreign nationals here illegally or legally but through fraud. [1] http://www.constitution.org/rf/alien_1798.htm [2] http://www.constitution.org/rf/sedition_1798.htm [3] http://www.constitution.org/rf/kr_1798.htm [4] http://www.constitution.org/rf/vr_1798.htm [5] http://www.constitution.org/cons/kent1799.htm [6] http://www.constitution.org/rf/vr_1799.htm [7] See Joseph Story, Commentaries on the Constitution, Book 3, Ch. 27, § 1288-9, http://www.constitution.org/js/js_327.htm [8] http://www.lib.byu.edu/~rdh/wwi/1918/usspy.html [9] http://www.constitution.org/ussc/071-002a.htm [10] http://www.constitution.org/ussc/317-001a.htm
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.