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Repeal the USA Patriot Act -- Part II: The Wheel of History
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Source: Truthout

This is Part II of a six-part t r u t h o u t series on the USA Patriot Act. This Act, passed hastily and in a time of fear, affects all of us in some very basic and important ways.

Part II walks the reader back in time to look at two acts, which were also passed hastily and in a time of fear. The Alien & Sedition Acts of 1798 parallel the USA Patriot Act in many respects, and offer some important warnings.

Repeal the USA Patriot Act

Part II: The Wheel of History

by Jennifer Van Bergen

t r u t h o u t | April 2, 2002

In 1798, the United States almost went to war with France.

France, angry that we had signed a treaty with England behind its back, began attacking American ships at sea. The United States sent a special peace delegation to France, but France tried to extract money from the delegates in exchange for receiving them.

The event became known as The XYZ Affair, after the three French operatives who demanded the bribe, whose identities President John Adams refused to reveal.

When Adams released the insulting dispatches, war fever swept the land.

"Millions for defense, not one cent for tribute!" became the cry of the warlike Federalist Party, and Americans of all political persuasions rashly agreed to increased defense expenditures and limits on personal freedoms.

Xenophobia became so great that many French immigrants who had sought refuge here from the guillotines of the French Revolution had to leave the U.S., often with nowhere to go.

With the country in a vengeful mood, the Alien and Sedition Laws were enacted.

The Alien Act allowed the President to arrest, imprison, and deport "dangerous" immigrants on mere suspicion of "treasonable or secret machinations against the government." If a deported alien returned, the President could imprison him for as long as he thought "the public safety may require."

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Sound strangely familiar? (If it does, then you know something about the USA Patriot Act.)

The Sedition Act made it unlawful for any person to write, print, publish, or speak anything "false, scandalous and malicious" about the government, either Congress or the Executive, if it was done with the intent to defame or to bring the government "into contempt or disrepute," or to excite the hatred of the people against the United States.

Does this remind you of John Ashcroft's December 6th rant before Congress in which he equated civil liberties with aid to terrorists and declared that any public debate would "give ammunition to America's enemies"?

The Alien and Sedition Laws were a blot on the democratic record of this country. They were not used to protect against dangerous aliens. The Alien Act was used by Federalists to keep out of Congress qualified Democratic candidates who had only recently become U.S. citizens (such as Swiss immigrant, Albert Gallatin, who two years later became Secretary of the Treasury under President Thomas Jefferson). The Sedition Law was used to arrest, prosecute, and jail Democratic newspaper editors who dared to oppose the Administration.

Thomas Jefferson and James Madison wrote resolutions that challenged the federal government's power to enact these laws. These became known as the Kentucky and Virginia Resolutions. These resolutions declared that states do not have to accept unconstitutional laws passed by Congress. The Kentucky Resolution further declared that states could nullify such laws.

These resolutions were never tested in the courts or in Congress, but many historians feel they provided the doctrinal basis for the secession of the South from the Union sixty-two years later, which began the Civil War.

It is frightening to make the comparison. War fever in 1798 led the extreme Right (Federalists) to push through acts that targeted immigrants but were used to persecute political opponents and violate the civil rights of citizens. These rash enactments led moderates to endorse two constitutionally dangerous doctrines, nullification and secession, which over half a century later opened the door for civil war.

We should think carefully about these events.

One member of the ill-fated 1798 peace delegation was John Marshall, subsequently the Chief Justice of the United States Supreme Court whose most famous decision, "Marbury v. Madison," established the doctrine of judicial supremacy, making the Supreme Court and not Congress the final arbiter of the law.

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Marshall did more to establish the power of the Supreme Court than any other Justice did. Without his establishment of judicial supremacy, the present Supreme Court arguably could not have put George W. Bush into office.

As one legal commentator put it: "The principal objection [to the doctrine of judicial supremacy] is the seeming paradox in a democracy of non-elected officials overruling policy judgments of the people's elected representatives." Or, for that matter, the popular vote.

Interesting, is it not, how the wheel of history turns and comes back to stare us in the face?

Tomorrow, Part III, civil rights violations and the possibility of torture under the USA Patriot Act.

Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter.

Jennifer Van Bergen is an Editor and a regular contributor to t r u t h o u t.

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