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“Legislative Constraints on American Civil Liberties During Episodes of Heightened RegimeStress”

Jeffrey Albertson, Jr.

Dr. Lightcap

POLS 4430

3 May 2010

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IntroductionIntroductionIntroductionIntroduction

The objective of this study will be to evaluate why democracies grant specific civil

liberties, but during periods of regime stress, those guarantees are either greatly constrained

or taken away. Democracies work with great effort to ensure that civil liberties are protected,

yet within a period of time, the focus of the regime changes to self-defense. This study will

determine what conditions much occur before restraints on civil liberties are enacted. The

hypothesis that will be analyzed during this paper considers that “Repressive Legislation = F

(Regime Stress).” Essentially, repressive legislation is a function of regime stress. Thus, regime

stress will become the mechanism by which repressive legislation becomes necessary.

Repressive legislation may not be the most popular strategy to enact, but often regimes must

switch into repressive mode to defend itself, while defending citizenry. The major question

that will be considered is why does the United States Constitution grant civil liberties, but

during periods of heightened stress presidential regimes revoke them?

First, the independent and dependent variable must be defined. The dependent

variable of repressive legislation is defined as any legislation that infringes upon civil liberties

granted in the United States Constitution. For example, the first amendment provides a

guarantee for free exercise of speech and press, but during the initial steps of this paper, that

amendment will be challenged. The independent variable of regime stress can be defined as

any threat a regime might sense, it could be actual, perceived, internal, or external. An

internal threat would come from within the United States, while an external threat would

come from abroad.

Second, reasoning as to why these cases were selected must be provided. Each of

the cases were selected because the regime within the mentioned periods were stressed by

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external and internal factors. The main threat experienced by each regime is that of war.

President Adams was able to escape it, Wilson delayed it as long as possible, and Bush

pursued it. I abstained from including President Abraham Lincoln's suspension of writs of

habeas corpus during the American Civil War because the United States did not have a threat

from external factors. By that, the United States government did not face the threat of

European involvement on as high of a level as in the three cases chosen. Moreover, at that

period in American history, the Confederate States of America was the largest single threat to

the United States government.

In this study, three cases will be considered from American history. The first case

involves the Sedition Act of 1789 during the regime of President John Adams. The second

cases involves the Sedition Act of 1918 which was passed under President Woodrow Wilson.

The final case involves the Patriot Act of 2001 from the regime of George W. Bush. The core

civil liberties issue in a democratic society is the right of the citizens to criticize the

government. "Before the development of modern free speech law, citizens who criticized the

government could be prosecuted for the crime of seditious libel" (Walker 2004, 27). As

Americans, we appreciate the fundamental rights granted within the Constitution. Obviously,

each of these rights are celebrated and acknowledged in different forms; whether it be

protest of a government action, purchasing a handgun, or voting in an election. The

fundamental amendment that will be considered throughout this study specifically involves

the first amendment. More specifically, the protection and establishment of exercise of free

speech and press. However, there have been cases in American history in which revoking

these civil liberties was vital to maintaining the security of the American government and its

citizenry. The upcoming analysis highlights these cases.

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Case 1: The Sedition Act of 1798Case 1: The Sedition Act of 1798Case 1: The Sedition Act of 1798Case 1: The Sedition Act of 1798

The best of times in the new United States of America was followed by the worst

of times. As the founding fathers separated after George Washington’s farewell speech in

1796, his threats slowly surfaced. Washington warned of foreign alliances and party politics,

two issues that would spearhead the Sedition Acts of 1798 and John Adams’ presidency. "The

years between 1798 and 1801 afford the first instance under the Constitution in which

American political leaders faced the problem of defining the role of public criticism in a

representative government" (Smith 1952A, 497). In 1798, the United States Congress enacted

a series of emergency statutes meant to contain the brewing discourse between England,

France, and itself. These were called the Alien and Sedition Acts. The alien laws made

naturalization more difficult and allowed the president to restrict the civil liberties of those

aliens deemed “friendly” or “enemy”. However, more relevant to this study, “the sedition law

gave the federal courts cognizance of the crime of libel when committed against an officer or

body of offices of the federal government and was so phrased, it is generally agreed, as to

abridge the freedom of the press” (Smelser 1954, 322).

France and Britain were at war. “Vice President Thomas Jefferson and his

Republicans (later Democratic party) embraced France and popular sovereignty” (Aitken and

Aitken 2007, n pag). “President John Adams, Washington’s successor, and the Federalists

despised the excesses of the French Revolution and tilted American neutrality toward Britain”

(Aitken and Aitken 2007, n pag). The first portion of Washington’s warning was becoming

more prevalent. “As the [Jay] treaty with Britain propelled the nation into a confrontation with

France, Adams found himself accepting Hamilton-inspired war measures that went beyond

his own proclivities for a maritime defense” (Skowronek 1997, 66). “The Jay Treaty produced a

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strain in Franco-American relations because the French regarded the treaty as remarkably

favoring Britain, a leader in the coalition with which France as at war” (Smelser 1954, 324). The

French directory viewed this treaty as an Anglo-American entente.

By early 1797, the Adams Administration was approaching its tipping point,

considering “to him there was sufficient proof that the French meant to control the United

States government” (Smelser 1954, 325). Americans were slowly separating themselves as to

being either pro-Britain or pro-France. The French were attempting to undo the American

neutrality by appealing to a fear of an overwhelming British influence in their activities. When

their first plan failed, they developed another that would further challenge the Adams

Administration. The French hired writers, specifically from newspapers, to win over the

American public over by attempting to undermine the first president's legacy. However,

much to the benefit of George Washington, this second plan was unsuccessful. The second

French plan failed “because the people trusted the Chief Magistrate (Washington), so now it

was determined to destroy his popularity by attacks with absolute falsehoods” (Smelser 1954,

325). The French plans were bold, but the climax was swiftly approaching. Franco-American

relations severed when France refused to recognize Charles Cotesworth Pinckney who

replaced James Monroe's position as Ambassador. However, the new president John Adams

faced a severe crisis within the French government. "President Adams called a special session

of Congress to convene on May 15, 1797. "In his speech to the national legislature, he

asserted that France in expelling Pinckney had treated the United States neither as allies, nor

friends, nor as a sovereign state" (Smith 1954B, 40). However, Adams still wanted to prevent

war by attempting to negotiate with the French directory. "To prevent the war spirit from

forcing the United States into hostilities before the envoys had a chance to negotiate a

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settlement, however, President Adams issued an executive order forbidding the arming of

merchant ships and Congress prohibited the fitting out of privateers" (Smith 1954E, 40). But

after several months of determination, the American envoys were unable to negotiate terms

with the French without a promise of a loan from the United States. This loan would be used

to finance the ongoing war effort against Britain and to pay a bribe to the French Directory.

The climax of the Franco-American hostility was reached during the XYZ Affair.

During this “affair”, French agents who were unidentified, tried to sell peace to the newly

elected Adams Administration. “On April 3, 1798, President John Adams dropped a bombshell

upon an anxious and heretofore divided Congress” (Ray 1983, 389). “At the request of the

House of Representatives, he transmitted several bundles of papers that chronicled recent

negotiations with the French Republic” (Ray 1983, 389). Both Congress and the American

people were eagerly awaiting an update about the mission to Paris which embarked seven

months prior. Upon initial investigation, it was discovered that the correspondences

uncovered a web of French diplomatic “intrigue replete with demands for bribes and forced

loans, and laced with personal insults and national threats— that amazed even many

Federalists bitterly critical of France” (Ray 1983, 389). Congress then decided to publish these

correspondences in what became identified as the XYZ Affair. After the publication, the

United States witnessed a dramatic reversal of traditional pro-French opinion. Many

Americans' former love for the revolutionary France turned into a disgust and hatred as a

result of this incident. All across the country, volunteer militias formed, a widespread protest

of French goods was enacted, and even townspeople in coastal areas donated money to

assist the stressed American government's effort to build a navy. The national outcry "offered

proof of a developing national solidarity that had not been witnessed since the revolution"

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(Ray 1983, 392). President Adams attempted to settle this discourse by a peaceful approach,

but France's insults, threats, and arrogant attitude made the probability of an honorable

resolution impossible. He effectively rode the crest of popular enthusiasm stirred up by the

XYZ Affair. "Millions for defense, but not a cent for tribute became the pugnacious motto of

the day, and new patriotic songs, such as 'Adams and Liberty' and 'Hail Columbia' received

wide popular acclaim"(Smith 1954E, 43). France had effectively shown itself not as an ally, but

as a much of a menace to American freedom as the British were just several years prior. "Ever

since President George Washington's Proclamation of Neutrality in 1793, the United States

had maintained a precarious impartially between England and France, despite its economic

dependence on the former and its treaty of obligations to the latter" (Smith 1954E, 39). The

diplomatic conflict between America and France led to an undeclared naval deemed as the

Quasi-War.

In the crisis following the XYZ Affair, the Federalists in Congress codified their

opposition to foreigners and to domestic critics in what became known as the Alien and

Sedition Laws of 1798. "Climaxing the upsurge of nativism aroused during the Half War with

France, these laws included, in addition to the Sedition Act and a new naturalization law, two

so-called Alien Acts designed to control the activities of all foreigner within the United States"

(Smith 1954C, 85). The Sedition Act would be used to directly deal with American critics. "This

law, which became effective for a period of two years beginning on June 25, 1798, made

foreigners in the United States liable to arbitrary arrest and deportation in peace or war"

(Smith 1954C, 86). The focus of the study will be on section 2 of the Sedition Act. Specifically,

it provided the framework the Adams' Administration would use to prevent opposition to its

actions. "The section section dealt solely with verbal opposition, providing penalties for any

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person, citizen, or alien, making any false, scandalous and malicious statements against the

President, either house of Congress, or the government with intent to defame them, or to

bring them into contempt or disrepute, or to excite against them the hatred of the good

people of the United States" (Smith 1952A, 498). The maximum penalty for someone

convicted under this act was two years imprisonment and a $2000 fine. Interestingly, this act

would expire not at the conclusion of the ongoing crisis with France, but at the end of

President Adams' term of office. If a person was convicted under this law, the final decision of

verdict would be made not by a judge, but by a jury. Ultimately, the jury would decide

whether that person's remarks violated the law. Considering the Federalists had been in

power since the ratification of the Constitution, they felt it was their responsibility to be the

guardians of the nation's welfare. "By identifying their administration with the government,

and the government with the Constitution, the Federalists concluded that criticism of their

administration was an attempt of subvert the Constitution and to overthrow the

government" (Smith 1952A, 500).

By July 1798, Adams’ administration using the Sedition Act was prepared to quell

any domestic opposition. However, because of the Jay Treaty a looming military alliance with

Britian could further complicate matters. An alliance with Britain would change the “Quasi-

War” with France into “a war of conquest against Spanish territory in the Western

Hemisphere” (Skowronek 1997, 67). This war was undeclared and was fought almost

completely at sea between the French and Americans. Adams perceived the British as

wanting to draw him into an alliance against the French, the result would not only be

international, but domestic civil war lingered in the background. Luckily for Adams, there was

little objection to the Sedition Act. Surprisingly, most Americans were willing to give up

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freedoms for protection. "The Americans were by no means a divided people who could be

separated from their government by foreign influence" (Ray 1983 ,394).

Moreover, Adams’ legitimacy as President was being weakened as he fell victim to

the conspiracies of his nominal friends. For an extended period, his cabinet had been taking

orders from Alexander Hamilton. Hamilton was the first Secretary of the Treasury, but during

this period he was a private citizen of New York. Under Hamilton’s direction and against the

President’s explicit wishes, the leading ministers plotted to promote their real leader to

effective command of the new army. "They traveled to Mount Vernon to importune

Washington, acknowledged by all to be indispensable as the formal if largely symbolic

commander of such a force, to demand that Hamilton be named first lieutenant" (Skrowronek

1997, 67). "Washington's intervention in this matter on Hamilton's behalf shows the extent to

which he remained the final source of authority even after he left office and just how far

authority had become attached from the formal structure of the government" (Skrowronek

1997, 67). Adams' grip on his administration had become questionable, but he had one last

plan to re-establish his legitimacy. He decided to press for peace with France, thus reversing

the country from the ever approaching threat of war. When his cabinet disagreed with his

intent, he purged them. His ultimate objective was to prevent chaos in the United States and

stay out of the European entanglement.

Tensions with the French were heightened also because the United States

government refused to continue paying debt remaining from the Revolutionary War. Due to

the recent French Revolution, the U.S. government felt this money was owed to the French

Monarchy and not the new Republic. When French ships attacked American vessels along the

eastern coast of the United States, no American Navy existed to fight them off. The American

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coast was left undefended , because the United States Navy was practically non-existent.

After a Congressional order, several ships were converted to combat the French. Following

this order, another was issued that repealed any treaties with France and authorized the

newly raised American Navy to attack French ships harassing American vessels. The

Convention of 1800 concluded this Quasi-War, but news arrived too late to assist Adams’

reelection efforts in 1800.

“The eventual defeat of Adams’ Federalist Party in the election of 1800 and its

ultimate collapse as a viable force on the national stage seemed to settle the issue decisively

on the side of open and free debate of wartime questions” (Weibgan 2005, 17). However, the

Adams Administration set a precedent for the future implementation of repressive legislation

because he was able to show that "people were willing to support the government and those

measures it deemed necessary to deal with the French threat" (Ray 1983, 399). In a way,

Americans displayed blanket approval of any action by the executive and Congress to protect

the country, even if those actions infringed upon its civil liberties. "The law furnished a ready

text, which the Republicans used to incite the American people to legal "insurgency" at the

polls; the election resulted in the repudiation of the party which tried to protect itself behind

the Sedition Law (Smith 1952A, 510). Moreover, the next president would inspire Americans

to think freely, while speaking and writing what they thought. Thomas Jefferson would even

go so far as to issue pardons to those convicted of seditious acts. Adams was the first

president to stir up massive public support for the developing American government.

"Although the federal Constitution had worked a revolution in American government, the

Federalists now condemned as 'revolutionary' a party which sought to gain control of the

government by Constitutional means" (Smith 1955F, 465). George Washington may have

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been the first to head the American government, but John Adams will be remembered as the

one who brought it to maturity. "Writing at the later time, Secretary of State Pickering, most

high-toned of the Federalists around the President, noted that 'Mr. Adams, in his vigorous

answers to the numerous addresses presented to him, enforced by the weight of his official

station, as president of the U. [sic] States contributed, doubtless, more than any other man to

elevate the temper of the nation' to its resistance of France and French influence" (Smith

1954E, 57).

Case 2: The Sedition Act of 1918 Case 2: The Sedition Act of 1918 Case 2: The Sedition Act of 1918 Case 2: The Sedition Act of 1918

If John Adams was the American President that brought the United States to

maturity, then Woodrow Wilson was the one who established its status as a global actor, who

in the future would be called upon to act as a peacemaker and world leader. "The only

president to earn a Ph. D. (from Johns Hopkins University), Woodrow Wilson, who was the

president of Princeton University and reform governor of New Jersey, resumed the activist

tone of presidential leadership established by Teddy Roosevelt" (Genovese 2001, 117). Wilson

was a wartime president "who not only exerted extra-constitutional leadership in war, but in

the aftermath of the war promoted an expansive and idealistic peace" (Genovese 2001, 117).

The change in sedition law from 1798 to 1918 was monumental. "The modern body of free

speech law in the United States grew out of the crisis of World War I, when the federal

government suppressed all criticism of the war" (Walker 2004, 28). Domestically, Wilson had

several achievement "including the federal income tax, the Federal Reserve System, the

Federal Trade Commission, and woman's suffrage" (Clements and Cheezum 2003, 3). “In his

first term, he used party and popular leadership as a source of domestic reforms, known as

the New Freedom” (Genovese 2001, 120). Legislation to break monopolies, assist unions, and

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lower tariffs were passed. As much as Wilson's first term focused on domestic affairs, this

second would focus almost entirely on international affairs, specifically with a concentration

in the European entanglement that became World War I.

World War I would dominate Wilson's second term. "Despite his efforts to maintain

peace and to mediate the conflict, a German decision to launch unrestricted submarine

warfare in early 1917 led to an American declaration of war in April 1917" (Clements and

Cheezum 2003, 30). With its commencement in 1914, the first World War became

synonymous with death and destruction on a level that was completely beyond the normal

human rationale of that period. For example, at the Battle of the Somme in the summer of

1916 resulted in roughly 400,000 British casualties alone. Those were either killed, wounded,

or captured. Basically, the first World War was a slaughter of a human generation that the

major global power players could not abstain. Wilson's second term was achieved by his

promise to keep the United States out of war in Europe. However, Wilson was soon to become

a war president,

The outbreak of war in Europe in August 1914 found Woodrow Wilson at one of

the lowest points of his presidency. “His wife Ellen, who had sustained the family through so

many earlier crises, was gravely ill and died on August 6, 1914, just as the war was beginning”

(Clements and Cheezum 2003, 170). During this period, Americans wanted to remain largely

neutral of the overseas affair. He even challenged American to both act and think with neutral

impartiality for the possible entanglement. “Wilson's belief that neutrality would improve his

chances of being accepted as a mediator was in tension with American economic interests,

which pulled the country toward the Allies” (Clements and Cheezum 2003, 170). Considering

the United States was trapped in an economic recession at the outbreak of the war, American

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businessmen perceived an opportunity of selling goods. At the beginning of the war, the

Allies were largely unprepared compared to the Central Powers. For those businessmen

seeking a profit, two major discourses lay in their path. First, “the incredible cost of modern

war rapidly exhausted Allied monetary reserves”(Clements and Cheezum 2003, 170). Since the

Allies were running out of money, their future purchases would be made on credit, this meant

those businessmen would develop a stake in the Allied victory. This would go against Wilson's

wishes to act with impartiality. Second, “the Germans would do everything in their power to

prevent American supplies from getting to their enemies” (Clements and Cheezum 2003,

171). Wilson then placed a heavy emphasis on mediation. He felt that a negotiated peace

between the nations at war was a much better outcome than the United States being

dragged into a war it was not prepared to fight. The Germans saw the flow of American goods

to their enemies as a major problem, but lacked a naval force capable of establishing a

conventional blockade of British and French ports. “All they had were twenty-five fragile

submarines, which were still largely untested in combat” (Clements and Cheezum 2003, 172).

The waters around this British Isles soon became a war zone in which ships carrying war

materials would be destroyed. However, using this strategy of unrestricted submarine

warfare, the Germans risked sinking a neutral ship. “Prior to 1915 warfare at sea had been

governed by a customary code developed in the age of sail, under which warships could stop

and search merchant vessels on the high seas, and even seize them, but they could not sink

them without providing for the safety of the passengers and crew” (Clements and Cheezum

2003, 172). The day after Germany declared their plan to adhere to this policy, the Wilson

Administration warned it would hold Germany under strict accountability for its behavior

towards American vessels. The Wilson Administration had not specifically defined strict

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accountability, but that soon changed after several incidents. Shortly after this declaration, an

American was killed on a British ship during a torpedo attack. Then, an American ship was

damaged from a bomb released from a German plane. The Wilson Administration still had not

held the Germans to strict accountability. “Real tests of strict accountability came on May 1,

when an American tanker, the Gulflight was torpedoed, killing three Americans” (Clements

and Cheezum 2003, 172). “Six days later the British steamship, the RMS Lusitania, was

torpedoed off the Irish coast with a loss of 128 Americans” (Clements and Cheezum 2003,

172). These attacks became the initial stress to the Wilson Regime.

On May 10, Wilson assured an audience of newly naturalized citizens in

Philadelphia that “there is such a things as a man being too proud to fight; There is such a

thing as a nation being so right that it does not need to convince other by force that it is

right” (Clements and Cheezum 2003, 173). Wilson's remarks were welcomed by the new

citizens, but Americans were infuriated by his words. Many Americans interpreted “too proud

to fight” as being “too cowardly to fight.” Wilson responded to the American public's outcry,

Wilson issued a sharp worded note to Germany. “Wilson and his advisers drafted a sharp

protest note to Germany that demanded an apology for the Lusitania sinking and insisted the

Germans adhere to maritime rules in the future” (Clements and Cheezum 2003, 173). In a

second note, he demanded the Germans change their policy or abandon submarine warfare.

This second note would bring real crisis into Wilson's regime because it would lead the

country to war.

Instead of acknowledging Wilson's second note, Wilson's Secretary of State

William Jennings Bryan resigned because he believed that this demand would lead to war.

“[Bryan] His resignation removed from the cabinet the only person with the political stature

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necessary to challenge the president on fundamental policy” (Clements and Cheezum 2003,

173). Therefore, it left Wilson completely on his own image in maintaining the kind of

aloofness from the war that Wilson wanted to underpin American policy.

Until this point, the Wilson Administration had seen no reason to mobilize for war,

but soon they would determine this a necessity. “On April 6, 1917, nineteen officers, as

prescribed by law, were stationed in Washington on duty on the General Staff of the army”

(Paxson 1920, 54). “This small group of men, all of whom had been trained by years of service

in the regular army, but no one of whom had ever commanded in action or seen a modern

division of American troops, was required by law under direction of the chief of staff to

formulate plans upon which four millions troops should be raised for the World War” (Paxson

1920, 54). As the plan was enacted, another plan was adopted as one last hope for neutrality.

“Early in 1916 congressional opponents of preparedness revived an idea about how to deal

with submarines by introducing the Gore-McLemore Resolutions, which called on the State

Department of deny a passport to anyone planning to travel into the war zone on an armed

ship” (Clements and Cheezum 2003, 174). However, this plan failed. During the period,

Congress along with Americans were sharply divided. Wilson wanted to adopt a 400,000 man

military force that would serve as a “continental army” that would protect the United States

should it be invaded. Many criticized this action as Wilson's plan to press for war before the

United States was totally prepared. Others determined this action to be in violation of his

promise of neutrality from the war. However, Wilson compromised on having federal control

of the national guard, but this led to the resignation of another Secretary. This time it was

Secretary of War Lindley Garrison. “Wilson chose his replacement Newton D. Baker, whose

near pacifist convictions were reassuring to southern and western Democrats” (Clements and

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Cheezum 2003, 175). The first crisis of the war was resolved by passage of the National

Defense Act, which established a regular army of 175,000 men and a national guard of

450,000 men. In a federal crisis occurred, the national guard troops could come under federal

control.

“On March 24, 1916, not long after Woodrow Wilson approved the House-Grey

memorandum, a German submarine torpedoed the French steamer Sussex, killing eighty

passengers, injuring several Americans, and reemphasizing the danger that the United States

would be dragged into the war” (Clements and Cheezum 2003, 176). Wilson again fired an

angry note to the German government, challenging them to abandon their present methods

of submarine warfare against passenger and cargo vessels. Also, Wilson threatened he would

sever diplomatic relations. Obviously, this sever would be just one step closer to war.

“Accordingly on May 4 Germany issued the Sussex Pledge, promising not to attack merchant

vessels without warning, provided the Americans got the British to relax their blockade of

Germany” (Clements and Cheezum 2003, 176). Wilson accepted the pledge, but felt no

responsibility to pressure the British into relaxing its ongoing blockade of Germany. The

Germans continued their present strategy and built more submarines. However, on January

31, 1917 the German government adopted a new plan of unrestricted submarine warfare.

Pressure built over the next few months. “On February 24 the British turned over

to the Americans an intercepted messages from the German foreign minister Arthur

Zimmermann to the Mexican government, proposing a German-Mexican-Japanese alliance in

the event of war between Germany and the United States” (Clements and Cheezum 2003,

178). The Mexican government quickly rejected this proposal, but German hostility towards

the United States was clear. Further on March 18, three American ships were sank resulting in

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the death of fifteen Americans. Wilson demanded that” the world should be made safe for

democracy” and effectively, the United States entered the war on the side of the Allies.

Mobilization for war would be difficult for the United States. An army had to be

raised from practically nothing, ships had to be built to transport men and materials to

Europe, but there still existed no way to evade the submarine threat in the Atlantic. The

ordeal of mobilization was complicated because the Allies had run out of resources and

became more dependent on American goods. They were dependent but they did not have

the money to pay for those good. Moreover, the ordeal of mobilization was further

complicated by social concerns. “In a nation where one of every seven people was an

immigrant, many from countries that were now America's enemies, some method had to be

found to assure national unity and promote support for the war” (Clements and Cheezum

2003, 180). The initial mobilization was plagued by inefficiency and minor scandals, even to

such a degree that a war cabinet was considered on take control from the president. This did

not materialize, but the discourse faced by the Wilson regime was at an all time high.

The drive for national unity was running amok as well. This led Congress to pass

the Espionage Act of 1917 and the Sedition Act of 1918, resulting in the suppression of

virtually all dissent. “The Espionage Act of 1917 provided the authority the government

needed to punish willful obstructionism, but in terms dangerously loose” (Blum1956, 143).

Despite the initial shortcomings, the United States was able to mobilize roughly 3 million men

to fight in Europe. Following those men was a gracious supply of food, material, and

weapons. This came to a major relief of Allied forces, because they were (with American help)

able to stop Germany's last great gamble to win the war. America's entrance solidified Allied

victory and forced Germany into negotiation for an honorable peace.

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"During World War I, passage of Espionage and Sedition Acts once again put free

speech front and center" (Weibgen 2005, 17). “The Sedition Act of 1918 prohibited disloyal,

profane, scurrilous, or abusive language about the form of government of the United States,

or the uniform of the Army or Navy, as well as any language that tended to bring the

government or the military into contempt, scorn, contumely, or disrepute” (Brand 2003, 84).

The sedition law was eagerly enforced by Attorney General Gregory and his eventual

successor A. Mitchell Palmer. This act was used to suppress those who questioned the

strategy of Wilson's regime during the course of the war. One example of the implementation

of the act found “labor leader Eugene Debs guilty of opposing the draft and spent the

duration of the war (and more) in federal prison” (Brand 2003, 84). However, Wilson's trust

was becoming more difficult for the American people to follow. “Herbert Croly of the New

Republic complained to Wilson that the repression was 'dividing the body of public opinion

into two irreconcilable classes'”(Brank 2003, 100).

Although the Sedition Act of 1918 was met with much more protest than the

Sedition Act of 1798, this act more so that the previous, was necessary to prevent

undermining of the Wilson regime. The Sedition Act of 1918 “empowered the federal

government to punish expressions of opinion which, regardless of their provable

consequences, were 'disloyal, profane, scurrilous or abusive' of the American form of

government, flag, or uniform” (Blum 1956, 143). The enactment by Congress surely was

meant to calm the frenzy of Americans. Both Presidents Adams and Wilson faced internal

dissent and external threat of war. However, Wilson's threat of war was much greater that

Adams'. In the first World War, the United States suffered about 320,000 casualties. Wilson's

threat of war was real considering that for the better part of two years, the United States had

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been harassed by German submarines. The Sedition Act of 1918 was vital to prevent

subversion against the Wilson regime, but to also stabilize national unity. If widespread

dissent were allowed, then the outcome of the war could have been much different. The

implications of not enacted this repressive legislation at the time it was, could have resulted

in the downfall of the Wilson regime along with long term alliance. Wilson did not abandon

civil liberties because he reject them, his regime repressed them because the prospect of

eventual peace was much more important. After World War I, the United States emerged as a

global actor. Just like Adams, Wilson not only matured his nation, but also established its role

as a global peacemaker. Wilson's legacy would describe him as a man filled with moral

values, they attempted to resolve a conflict with immoral values, by idealistic means. This was

an unintended legacy of Wilson's moralism. “His basic, lifelong faith was in the individual as a

distinct moral agent, inspired by and accountable to God; in the individual as the special

object of a Christian education; in this individual, so accountable and so educated, as the

judicious artificer of his own political and economic life” (Blum 1956, 197).

Case 3: The Patriot Act of 2001Case 3: The Patriot Act of 2001Case 3: The Patriot Act of 2001Case 3: The Patriot Act of 2001

President Adams prevented war by using repressive legislation, President Wilson

delayed American involvement in the first world war using repressive legislation, but

President George W. Bush used the Patriot Act of 2001 to take an immediate assault to the

War on Terrorism. On September 11, 2001, the United States was overtly attacked by terrorists

later linked to Al-Qaeda. Both towers of the World Trade Center in New York City and the

Department of Defense's headquarters (The Pentagon in Washington, D.C.) became targets.

Another plane, allegedly in route to the U.S. Capitol building, was overtaken by American

passengers and crashed near Shanksville, Pennsylvania. “The catastrophic events of

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September 11, 2001, are said to have permanently changed the American political and social

fabric” (Foerstel 2008, 1). “Before these attacks, terrorism seemed to be a distant activity

directed against isolated targets by fringe individuals carrying inexplicable grudges” (Crotty

2004, 1). “From ground zero, Bush moved uptown to talk with two hundred relatives of

missing police officers and firefighters” (Kettl 2004, 4). The attacks placed global focus on the

Bush regime on the issues of national defense and foreign policy. The Patriot Act was meant

to resolve those issues, while preventing and subsequent attacks.

The Patriot Act, dubbed the USA Patriot Act was enacted 6 weeks after the

September 11 terrorist attacks. The purpose of this act was to update expired lapses in the

United States' ability to effectively collect intelligence. Specifically, the Bush regime feared

the United State did not have the ability to keep up with new communication technologies

(cell phones, electronic banking, and the internet). Also, this act promoted the sharing of

intelligence between agencies within the federal government.

By October 2001, the world had changed and the USA Patriot Act was passed. “So

patent was the need for this law that is racked up massive support: 357-66 in the House, 98-1

in the Senate” (Weibgen 2005, 157). The Patriot Act was not an assualt on civil liberties, but

was a necessary upgrade for the outdated system in place to secure America's national

defense. “The most essential improvement wrought by Patriot has been the dismantling of

the intelligence wall” (Weibgen 2005, 158). The bill specifically amended the government's

national security eavesdropping-and -search authority (FISA) to clarify that intelligence

agents, criminal investigators, and prosecutors not only may but should be sharing

information.

“In the weeks that followed the attacks, Bush and his advisers devised a new

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strategy for “homeland security” and a new White House office to craft it” (Kettl 2004, 7).

President Bush appointed Pennsylvania governor Tom Ridge to head to the new office. At the

swearing in ceremony, Bush highlighted Ridge's new role; “We will take strong precautions

aimed at preventing terrorist attacks and prepare to respond effectively if they might come

again” (Kettl 2004, 7). The media criticized the department name as something of a fascist

making. “Homeland Security” sounded like something created by Adolf Hitler's Nazi Germany,

but all names aside, this department was crucial in preventing any attacks. At the core of this

strategy was a series of dilemmas. In past examples, civil liberties had to be infringed upon in

order for the government to provide security. “Achieving security against new, uncertain

threats from terrorism inevitably meant giving up other things, including some freedoms”

(Kettl 2004, 8). The Bush regime then adopted the notion of prevention rather than

retaliation.

Earlier events had shown the necessity for a better national strategy to detect,

intercept, and prevent terrorist attacks. For example, a hypothetical bio-terrorism attack was

mocked on Washington in the weeks prior to September 11, 2001; result was predicted to

have killed almost 1 million Americans. Moreover, the same organization that attacked the

World Trade Center in 2001, attacked it in 1993, but only killed six people and injured near

one thousand. Plans began to take shape to combat these occurrences, but after the events

of September 11. Members of Congress agreed on new legislation to make it easier to track

the origin and destination of telephone calls and to increase the authorirty of government to

track email. A consensus was reached between the Bush regime and Congress in respect to

broader wiretapping measures and to track the flow of money to terrorist groups. However,

the Bush regime wanted much stricter control. “Ashcroft wanted this authority to to

22

indefinitely detain noncitizens who the Justice Department believed might be planning acts

of terrorism” (Kettl 2004, 95). This plan seemed like something from the Adams' regime way

back in 1798. However, now with a clear understanding of the U.S. Constitution, this idea

would be challenged on several levels. Members of Congress considered Ashcroft's requests

for more power, but a debate stirred up considering their legality. Members agreed that the

federal government needed better measures and tougher penalties against terrorism and a

better framework to investigate these activities. “Citizens expect a right of privacy in their

homes and workplaces, but government intelligence analysts believed that they needed

broader powers to wiretap phones and track emails” (Kettl 2004, 95). The justification of this

request lie in that notion that terrorist organizations worked in absolute secrecy, and without

these measures their investigations would be constrained.

“The Patriot Act does not completely abolish any civil liberties, but it relaxes

existing protections against government surveillance” (Walker 2004, 86). There were two

major parts of the Patriot Act that did not sit well with the American public and Members of

Congress. “One part of the Patriot Act that especially disturbs civil libertarians is Section 213,

which allows the government to conduct searches of homes and other other locations

without informing the individuals who are the subjects of the search” (Walker 2004, 86). It

does not take a genius to interpret this as clearly violates Amendment Four of the U.S.

Constitution. That amendment protects from unreasonable searches and seizures and a

warrant can only be issued once probably cause has been established. Further, the warrant

must describe specific items and persons to be seized. These searches would be deemed

“sneak-and-peek” searches. Specifically, Section 213 grants the government “authority for

delaying notice of the execution of a search warrant” (Walker 2004, 86). By 2005, debate

23

centered on not only Section 213, but Section 215 as well. “Section 215, which allows the FBI

to ask the Foreign Intelligence Surveillance Court for an order to obtain documents relating to

counter terrorism investigations without meeting the usual standard of showing probable

cause that a crime had been committed” (Roberts 2008, 39). The fear became that the FBI

could go on a fishing expedition and collect information on virtually anyone. Protest of

Section 215 would come from a unique group, librarians. Their campaign was largely

effective. “Librarian associations made Section215 the centerpiece of their campaign against

the Patriot Act, arguing that the government would be able to 'sweep up vast amounts of

information about people who were not suspected of a crime” (Roberts 2008, 39).

“In the war on terror, there Is no visible enemy, no one country at which to direct

our military might beyond Afghanistan, and no pronouncement of war from the people's

representatives” (Mack and Kelly 2004, 238). By using the Patriot Act of 2001, the fundamental

rights of American citizens have been curtailed without their knowledge. Also, the basic rights

of non citizens residents in the United States have been infringed upon. The Bush regime will

not be only remembered for this controversial repressive legislation, but also for its pursuit of

Al-Qaeda in the war on terrorism. The first steps began in 2001 by the U.S. led invasion of

Afghanistan. By 2003, the war on the war on terror had a new front in Iraq. This regime will

not only be remembered for its extreme actions, but also for its overt violation of civil liberties

during this episode. Moreover, the severity of the Patriot Act was justified because Americans

were terrified of what attack may come next. The Bush regime using this legislation was able

to prevent any further attacks. Instead of waiting for an attack, the Bush regime decided to

take the fight to Al-Qaeda wherever globally it may reside. President Adams matured the

United States, President Wilson established its role as a global power, President Bush

24

established its role as a global protector. That would stand to protect the free world and its

citizenry from tyrants, terrorists, or rogues.

Conclusion and Implication for Future LegislationConclusion and Implication for Future LegislationConclusion and Implication for Future LegislationConclusion and Implication for Future Legislation

The meaning of the First Amendment did not crystallize in 1791, when the Bill of

Rights was added to the Constitution. “Not until the years from 1798 to 1801, when the

Sedition Act was debated and enforced, did the limits of liberty of speech and of the press

become an issue which focused attention squarely on its definition as a part of the American

experiment in self-government” (Smith 1952A, 507). A major catalyst of the American

Revolution was an effort by the British to subdue the press in then colonial America. The

Sedition Act played a significant role in shaping the American tradition of civil liberties.

However, by the implementation of the Patriot Act of 2001, the mood for repressive

legislation was doing less repression and more evasion. Instead of directly abolishing civil

liberties, this act evades civil liberties. For example, Section 213 does not ban unreasonable

searches and seizures, but it attempts to evade the precise wording found in the Constitution.

“The genius of the Constitution and the opinion of the people of the United States, cannot be

overruled by those who administer the Government” (Smith 1952a, 509). The Sedition Act of

1918 was vital because it allowed the Wilson regime to focus entirely on the ongoing war

effort. In arguably a severe global crisis, this regime was strapped for attention. This attention

deficit was aided by the regimes suppression of verbal and written civil liberties.

I predicted that repressive legislation is enacted during periods of regime stress. In

each of the previous cases, a major event occurred that led to the implementation of this

strategy. In 1798, it was the XYZ Affair, in 1918 it was the Zimmerman Letter, and in 2001 it

was the terrorist attacks of September 11. These were not the only events that led the Adams,

25

Wilson, and Bush regimes to adopt these policies. In each case, a historical narrative was

provided to highlight several of the major stress experience by the regime. Throughout

history these policies have been meet with different opinions. The Sedition Act of 1798 was

viewed as being controversial because it clearly restrained First Amendment rights. The same

could be concluded about the Sedition Act of 1918. However, by 2001 this strategy had

changed drastically. If the Sedition Acts of 1798 & 1918 represented repression, then the

Patriot Act of 2001 was their mutated polar opposite. The previous acts specifically constrain

civil liberty, but the Patriot Act effectively evades those same liberties. In short, for this form of

legislation to be adopted, a series of stressful events (both internal and external) must be

perceived or witnessed by the regime in power. This strategy performs best during episodes

of heightened stress. Thus, the proposed hypothesis is strongly supported. Therefore, if a

regime experiences a higher level of stress than normal, then it will enact repressive

legislation to quell that stress.

Most of the Patriot Act remains largely in tact. If another situation arise against the

United States that it would need to use repressive legislation, the implications are that it

would not be obvious to constraining civil liberties, but would overtly evade those liberties

found in the Bill of Rights. Hopefully, a situation of this magnitude will not arise, but by the

reforms of the Patriot Act, the likelihood of a drastic situation much less. That is to say not that

it could not happen again, but that the United States would be much better able to prevent

the attack. New repressive legislation will be meant not to constrain but to prevent dramatic

events. The sole objective of 21st century repressive legislation will be not to infringe, but to

evade, undermine, while attempting to protect. James Madison wrote in 1822 that: “A

popular government without popular information or the means of securing it, is but a

26

prologue to a farce or a tragedy or perhaps both; knowledge will forever govern ignorance,

and a people who mean to be their own Governors must arm themselves with power [that]

knowledge gives” (Proctor et al. 2005, 206). To be successful, the regime must have the tools

necessary to do its job. However, at what point does the use of these tools justify violating

civil liberties?

27

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