Cast of Characters
||Citizen Two |
||Justice Louis Brandeis |
|Justice David Davis
For its first 12 years, a “Congress of the States” ruled the new American nation, governing with enough effectiveness to allow its armies to defeat the British. But previously ignored differences arose after the Revolution concerning how best to govern this loose coalition of states.
On one side were the Federalists, who believed the new nation needed a strong centralized government. On the other side were the Anti-Federalists, who wanted to retain autonomy in the states. A Constitutional Convention met in Philadelphia in the summer of 1787 to find a compromise that would bridge their differences. The Anti-Federalists believed that the emerging document lacked sufficient guarantees of individual rights. MUSIC
: Fades out
Signing of the Constitution
The chair recognizes Gouverneur Morris of Pennsylvania
Gouverneur Morris of Pennsylvania
A firm Government alone can protect our liberties. I fear the influence of the rich. They will have the same effect here as elsewhere if we do not, by such a Government, keep them within their proper sphere. People never act from reason alone. The Rich will take advantage of their passions and make these the instruments for oppressing them. The Result of the Contest will be a violent aristocracy, or a more violent despotism. The schemes of the Rich will be favored by the extent of the Country. The people in such distant parts cannot communicate and act in concert. They will be the dupes of those who have more knowledge and intercourse. The only security against encroachments will be a select and sagacious body of men, instituted to watch against them on all sides.
The chair recognizes Mr. Edwin Randolph of Virginia
Edwin Randolph of Virginia
Two such opposite bodies as Mr. Morris has planned could never long co-exist. Dissentions would arise as has been seen even between the Senate and House of Delegates in Maryland, appeals would be made to the people; and in a little time, commotions would be the result.
The chair recognizes Mr. Benjamin Franklin of Pennsylvania .
Benjamin Franklin of Pennsylvania
Sir, I agree to this Constitution, with all its faults, because I think a general government necessary. And there is no form of government but what may be a blessing to the people if well administered , which I believe this is likely to be. It will only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. I doubt, too, whether any other convention would be able to make a better Constitution. For when you assemble a number of men to share their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.
Can a perfect production be expected from such an assembly? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does.
Despite their differences, the Convention hammered out a Constitution and presented it to the voters in the thirteen states. Passage was not assured. During the debates in the states, printers circulated essays, pamphlets and broadsides arguing both sides of the question. Federalists, such as John Hancock and James Madison, and Anti-Federalists, men like Samuel Adams and Patrick Henry, waged a war of words in pamphlets and newspapers. Federalists argued for a centralized government. Anti-Federalists attacked what they feared would be the unchecked power of such a government and demanded a bill of rights guaranteeing individual liberties.
Without a bill of rights, some newspapers claimed the government would fall into the hands of pagans and deists, leading to inquisitions and torture as punishment for federal crimes. Samuel Bryan, an anti-Federalist, wrote a series of essays published in the Independent Gazetteer, a Philadelphia newspaper, attacking the loss of states rights and warning of the dangers of centralized power and the influence of rich elites—fears that still haunt many Americans now, more than 200 years later.
The United States are to be melted down into a despotic empire dominated by well-born aristocrats! The workingman will be subjugated to the will of an all-powerful authority remote and inaccessible to the people. . . . These lawyers and men of learning and moneyed men, will make us poor illiterate people swallow down the pill and they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!"
James Madison, a champion of federalism, nonetheless took up the challenge to devise a bill of rights clearly limiting government’s reach into the personal lives of its citizens. Madison articulated his ideas in a letter to fellow Federalist Thomas Jefferson.
Mr. Jefferson: My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. . . . I have favored it because I suppose it might be of use, and if properly executed could not be of disservice. . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. . . . It may be thought all paper barriers against the power of the community are too weak to be worthy of attention . . . yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean[s] to control the majority from those acts to which they might be otherwise inclined.
Jefferson regarded the press as an essential component of such a system of governance.
Sir: The basis of our governments being the opinion of the people, the very first object should be to keep that right. Were it left to me to decide whether we have a
government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.
Madison notes on the Bill of Rights, June 8, 1789
In handwritten notes, Madison began shaping his ideas for a Bill of Rights, first in a speech to the Virginia Assembly.
Sirs: It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. I know some respectable characters who opposed this government on the grounds that it grants more power to the state than deemed necessary. I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights. The amendments which have occurred to me proper to be recommended by Congress to the states, are these:
The civil rights of none shall be abridged on account of religious belief or worship. Nor shall any national religion be established. Nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
Nor shall the people be deprived of their right to speak, to write, or to publish their sentiments. And the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
Finally, the people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions for redress of their grievances.
I propose that the First Amendment shall read: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
MUSIC: “Free Speech” theme production number (based upon the above words?) plays to finish
Secured by passage of the Bill of Rights in 1791, press freedom seemed guaranteed . . .
The Sedition Act of 1798
. . . that is until 1798 and passage of the Alien and Sedition Acts.
The Sedition Act punished publication of “any false, scandalous and malicious writing or writing against the government of the United States or Congress or the President, with the intent to defame or to bring them into contempt or disrepute.”
The Federalists, the party in power led by Alexander Hamilton and President John Adams, argued that the Sedition Act was needed to protect the United States from foreign invaders and propagandists. Democratic-Republicans, the newly formed party led by Jefferson and Madison, regarded the Act as a direct threat to individual liberty as well as a political barrier to the freedom of the press and a restriction on states’ rights. In a letter to a neighbor, Jefferson wrote:
Sir: I am informed that the alien and sedition laws are working hard. I fancy that some of the State legislatures will take strong ground on this occasion. For my own part, I consider those laws as merely an experiment on the American mind, to see how far it will bear an avowed violation of the constitution. If this goes down we shall immediately see attempted another act of Congress, declaring that the President shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs, and the establishment of the Senate for life. I have no doubt these things are in contemplation. Nor can I be confident of their failure, after the dupery of which our countrymen have shown themselves susceptible.
Many believed the Alien and Sedition laws were designed to silence and weaken the Democratic-Republican Party, and most of those prosecuted were Democratic-Republican journalists who criticized Adams’ presidency and the Federalists. Over a period of two years, twenty-five printers were arrested and seventeen indicted. In all, ten printers were tried and convicted.
Together, Madison and Jefferson fought the Sedition Act, proposing, in this Kentucky Resolution—and a similar Virginia Resolution—a radical idea: That government is the servant of the people, not the other way ‘round. They argued for the idea enshrined in the Constitution—that the government cannot tell the people what to think. Madison and Jefferson recognized that a democratic society exists and can remain secure only when its citizens may freely debate the political issues of the day.
MUSIC: soft drum roll begins
In their fight against the Sedition Act, Democratic-Republicans championed the citizens’ right to say:
Everything his passions suggest!
George Hay, a leading Democratic-Republican, argued:
Citizens may speak against the government matters that are false, scandalous and wicked.
The Democratic-Republican stand against the Sedition Act clarified the citizens’ relationship to their government—that the people are sovereign, not subjects. Freedom of expression is central to this relationship, and a free press is its foundation.
A citizen should be safe within the sanctuary of the press even if he condemns the principle of republican institutions and censures the government, even if he violates every principle of decency and truth!
MUSIC: drum roll ends with stinger
Public opposition to the Sedition Act was so great that it played a major role in the election of Thomas Jefferson in 1800. In his first inaugural address he declared:
If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments to the safety with which error of opinion may be tolerated where reason is left free to combat it.
But by the time of his second inaugural, Jefferson had been subjected to a barrage of press criticism and he spoke of the “licentiousness” with which the “artillery of the press has been leveled against us.” Near the end of his presidency, he wrote to a prospective publisher about the nature and use of the press, reflecting on issues that bedevil American media powers today:
Sir, To your request of my opinion of the manner in which a newspaper should be conducted, so as to be most useful, I should answer, “by restraining it to true facts and sound principles only.” Yet I fear such a paper would find few subscribers.
It is a melancholy truth that suppression of the press could not more completely deprive the nation of its benefits than is done by its abandoned prostitution to falsehood. Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle.
Perhaps an editor might begin a reformation in some such way as this: Divide his paper into four chapters, heading the first, Truths. Second, Probabilities. Third, Possibilities. Fourth, Lies. The first chapter would be very short, as it would contain little more than authentic papers and information from such sources as the editor would be willing to risk his own reputation. The second would contain what, from a mature consideration of all circumstances, his judgment should conclude to be probably true. This, however, should rather contain too little than too much. The third & fourth should be professedly for those readers who would rather have lies for their money than the blank paper they would occupy.
The Sedition Act expired in 1801. But the fight for press and speech freedom continued throughout the nineteenth and twentieth centuries as both federal and state governments enacted laws that muzzled expression which aroused unrest or incited lawlessness.