This article is the second of two parts and is based on a talk delivered to a Colloquium on Statesmanship and the Constitution at the Rochester Institute of Technology, April 13–14, 2012.
So now we come to the crux of the issue: statesmanship means great public service. And the charge is often made—by Richard Brookhiser, among others who should know better—that Adams was bad at the job of being a public servant. Here weare concerned with the Adams presidency, and its loss.
No one likes a loser, we often are told. And the assumption is that managing to lose a presidential election is proof of, well, being a loser. What’s more, we are told, the Adams administration simply wasn’t very good. Adams spent too much time at home and made the critical error of keeping his predecessor’s cabinet, which was predictably disloyal to him. He also stirred up trouble with our old allies the French, and was responsible for the horrendously awful Alien and Sedition Acts.
Let’s first dispense with the “loser” claim. Yes, Adams lost the election of 1800, but then he lost principally because one state—New York—changed sides from the previous election. You see, Jefferson had wanted to be President himself, and had a great deal of support in 1796, when he and Adams first faced off in an election. Still, Adams won the election of 1796. A lot happened over the next four years, but only six states had any kind of popular vote for presidential electors, and there were wildly divergent rules on who got to vote—principally regarding how much property you had to control in order to vote.
It was a hotly contested election, with taxes, war fever, and freedom of the press issues at the forefront. And Adams refused to stir up war fever for the sake of victory, which may have cost him significant support. At least as important, however, was the role of Alexander Hamilton in undermining Adams’ public image through scathing back-room politicking that became public, and of Republican Vice Presidential candidate Aaron Burr in mobilizing support in his home state of New York.
Of course, it is always dramatic to have a change of power, but there was never any doubt but that Adams would hand over that power. He left in a justifiable huff. But he left the people’s house, and in good order.
Next is the charge that Adams was simply a bad chief executive. It is important, here, to note that Adams is not actually being charged with being a bad statesman. Rather, the charge is that he was a bad politician—a different and lesser thing concerned with the winning of elections and the making of useful bargains that can but need not make statesmanship possible.
It is true that Adams was a bad politician—or, at any rate, not a great one. He spent too much time at home in Massachusetts instead of in Philadelphia, the capitol at the time. He did his job perfectly well from Massachusetts. But it probably would have been politically wise to stick around and cozy up to more politicians more of the time—even if Adams thought, along with most Americans, that politics should not be a full time job, and government should not always be, well, “governing.”
And what of the charge that it was inexcusably foolish for Adams to keep George Washington’s cabinet? Here it seems unfair and even foolish to charge Adams with clear error. To begin with, Adams thought continuity among high advisors would be best for maintaining stability and public confidence in a new country. Remember, this was the first change in American administrations. The major example Americans had of how to deal with such transitions in rulership came from Great Britain, and British Prime Ministers often kept their predecessors’ ministers.
Again, Adams probably put up with too much disloyalty to him personally from his cabinet members, but frankly we demand more of that now than used to be the case. What is more, Adams was trying to maintain the fragile alliance that was the Federalist Party of his day. That alliance was in very real trouble, stemming from the fact that it combined “High” Federalists like Hamilton, who were extreme proponents of nationalism, and “low” federalists who, like Adams, were more purely republican—fearful, for example, of standing armies.
Now, finally, I want to come to the great stain many historians see on Adams’character, a stain summed up in the title of a set of legislation called the Alien and Sedition Acts. The claim here is that Adams joined an evil cabal of High Federalists who sought to stifle democratic expressions of free speech and muzzle freedom of the press in order to secure their own re-elections and stamp out opposition to their budding aristocracy. What should we make of this?
To begin with, Presidents at the time did not initiate legislation. Those were better, more constitutionally obedient times, when Congress was in charge of making laws. What’s more, vetoing legislation was extremely rare, and generally undertaken only for constitutional reasons. Washington had vetoed only two bills during his eight years in office—one of them on specifically constitutional grounds. Thus, the Alien and Sedition Acts were not Adams’ legislation, and there is substantial debate over whether he actually wanted to keep them from becoming law on account of their being bad policy.
Nonetheless, Adams did sign the legislation, and he did allow his Attorney General to prosecute under it. So, what was going on?
Keep the history in mind: after our revolution, helped by the king of France, the French had their own revolution, which turned exceedingly bloody. At the same time, America almost went to war with Britain over debts, return of loyalist property, British forts, and shipping. But the Anglo-American dispute was settled, more or less, and Washington declared American neutrality in what was becoming a world war between Britain and France.
The French revolutionaries saw American neutrality as a betrayal and essentially broke off diplomatic relations. At about this time Adams ascended to the Presidency. He was no fan of Great Britain, but a clear enemy of radicalism—of revolution of the French variety, in which God was replaced in churches by a “goddess of reason” and the world was to be “made anew” through use of the guillotine. Still, Adams sent new ambassadors, whom the French threatened and from whom they demanded bribes (the famous “XYZ affair”). This created scandal and anger on both sides. Adams armed, getting approval for a navy and making provisions for an army—though he hated standing armies, being a good republican. Meanwhile, French revolutionary diplomats, agents, and allies were roaming the country demanding America return to supporting its “fellow republic,” France.
In this context Congress passed the Alien and Sedition acts providing for deportation of rabble-rousing aliens and punishment of seditious libel. The Acts regarding Aliens were largely irrelevant and unenforced. It was the Sedition Act that caused, and still causes, so much alarm.
Let’s be clear: I would not support this legislation. The law gave too much power to the federal government, allowing bounders like Samuel Chase to try to bully people into jail. It also was a classic case of self-interested legislation. As Akhil Amar has pointed out, it allowed those in power to punish criticisms of the government, without protecting opposition figures from the same kinds of criticism. And its selfish nature was made clear by the fact that it was set to expire right after the elections of 1800.
But what did the Sedition Act actually do? Was it clearly unconstitutional? A horrible attack on the natural rights of free speech and freedom of the press?
No, and no.
Despite hyperbole from some civil libertarians, including Justice William O. Douglas, there was nothing unconstitutional about the Sedition Act in particular.
The act made it illegal to, in speech or writing, make statements that are “false, scandalous, and malicious” against the government or its representatives with intent to defame. Now, we have a word for false statements made with intent to defame. The word is libel, and it’s always been in an important sense illegal. That is, one could sue, under Englishand American law, a person who intentionally defamed one because it was a tort—a breach of private law.
The difference under the Sedition Act was that the one defamed was a member of the government, and so the remedy was prosecution instead of payment of damages. You can say those are big differences, and they are. Again, in the end I don’t think this legislation was a good idea. Not coincidentally, future Chief Justice John Marshall criticized the legislation as bad policy, though he never attacked its constitutionality and many scholars name him the author of a Virginia legislative report actually defending it as constitutional.
My point is a limited one, however. Libel has never been protected speech. I see no reason to claim that a person who intentionally utters a falsehood with intent to defame someone—to damage their reputation, bringing them into disrepute—should be able to claim constitutional protection for committing libel. And it certainly is not the case that the First Amendment to the Constitution, in protecting freedom of speech and of the press, was intended by its authors or understood by their contemporaries to protect intentional falsehoods intended to defame people.
Rather, we are at the level of a prudential decision, of whether we want the government to have the power to put people in prison for libeling them, or the government as a whole. I think our experience with the Sedition Act shows it isn’t a good idea to give so much power to government ministers, along with the temptation to punish their opponents with the law. But we should keep the Act and the harm done under it in perspective. Twenty-five people were arrested for violations of the Sedition Act. Eleven were prosecuted under it, every one of them being convicted, generally by partisan judges who were none too scrupulous in their definitions of what constituted seditious libel. (Have I mentioned I wouldn’t support the law today and think it was a bad idea at the time?) But it would be well for us to remember that, though the law expired before Jefferson took office as President, his allies in New York soon commenced prosecutions against Federalist journalists for seditious libel—under the common, or judge-made law of the state, feeling no need for a statute of any kind. In point of fact, historians including John Patrick Diggins have argued that the federal statue actually was more difficult to misuse than the common law, which did not require proof of intent to commit subversion or insurrection.
Let’s recap. In the election of 1800 there was much unpleasantness. Close to a dozen journalists were fined and/or sent to jail in trials that lacked true impartiality for printing charges that the British were running the Adams administration, that Adams and/or Federalist supporters were oppressors with ambitions to aristocratic rule and the like. No one was executed (as happened to thousands upon thousands of people on the other, more “democratic,” side of the Atlantic). And we had a free election, which Adams lost.
Not a happy ending to his Administration. But then a war with France, which he avoided with great, near-heroic efforts, would have made for a far worse ending, as would have capitulation to French depredations. Did Jefferson do better, or even as well with his rather pitiful “embargo” of the French? Did Madison, with the disastrous conduct of the War of 1812? The answer is at least open to rational debate.
Adams was not the world’s best politician. But then he wasn’t nearly so bad a politician as has been assumed. Moreover, and far more important, he was a true statesman, committed to republican principles, conducting himself in a virtuous, self-sacrificing manner that served the public good. Cranky or not, I submit that that should be good enough for all of us to say that he is worthy of our respect, admiration, and even emulation as an important figure in the American tradition of republican statesmanship.
Bruce P. Frohnen is Professor of Law at Ohio Northern University’s College of Law and a Senior Fellow at the Russell Kirk Center for Cultural Renewal.
