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The Original Call for Resistance

Edward Livingston Opposes the Alien & Sedition Acts

Edward Livingston: The New York Years, by Douglas B. Habig

Opposition to the Presidency of Donald J. Trump arose almost from the outset of his election. This opposition has largely coalesced around numerous calls for “Resistance” to President Trump, focused primarily on his divisive rhetoric and policies. Not the least of these are his attacks on immigrants and the press. According to President Trump, most immigrants, whether documented or undocumented, are a threat to the white majority that has predominated in the United States since its founding. He has consistently called undocumented immigrants “murderers,” “rapists” and an “infestation.” Even legal immigrants are not welcome if they come from “shithole countries.” Similarly, President Trump has almost universally condemned the American press as “the enemy of the people.” He has personally attacked, and encouraged if not sanctioned threats against members of the press he calls “Fake News.”  By which Trump means any who do not heap fawning praise on him and his Administration.

Demogoguery and attacks on immigrants and the press, however, are nothing new in American politics. In fact, almost from the inception of our nation, immigration and the independent press have been under attack. Within a decade of ratification of the U.S. Constitution and Bill of Rights, the first such assault began in earnest on immigrants and the press. These took the form of several laws that have collectively been called the Alien and Sedition Acts. It was these unconstitutional and repressive measures by the Adams Administration and Federalists in Congress that led to the first call for “Resistance.” That call for resistance and the most vocal opposition to these laws came from Edward Livingston.

Livingston was a brilliant young member of a wealthy New York family who were extensive landowners and landlords in the Hudson River Valley. He had an immaculate political pedigree to be a revolutionary. His father had served prominently in the Stamp Act Congress in 1765 and his oldest brother had been on the committee that drafted the Declaration of Independence, along with Thomas Jefferson, John Adams and Benjamin Franklin. Edward Livingston also had an affinity for the poor, disadvantaged and immigrants, which distinguished him from many of those in his social and economic class. His political career was launched by a speech to the New York German Society and he was closely aligned with French immigrants who had fled the violence and excesses of the French Revolution. Livingston was also a founding member of the New York Democratic Society, which believed “all legitimate power resides in the People” and supported the Equal Rights of Man.

Edward Livingston was elected to Congress as representative of New York City, largely with the support of mechanics, tradesmen and immigrant communities. Federalists, who controlled all branches of the federal government, largely represented the interests of the wealthy. Many Federalists sought to restore business and political ties to Great Britain disrupted since the end of American Revolution. They also hated the French, considering them depraved and corrupt.  Federalists falsely asserted French immigrants were fomenting a Jacobin revolution in America. The Washington and Adams Administrations had repeatedly violated America’s treaty with France in favor of England. Leaders of their party in Congress were increasingly clamoring for war against the French Republic.

In the summer of 1798, Federalists took decisive action against immigrants and the Republican press by passage of increasingly repressive measures. Livingston returned to Philadelphia from a hiatus specifically to oppose the Alien bill. The proposed law authorized the President to unilaterally imprison and expel immigrants from the country whom he “suspected” of “treasonable or secret machinations against the Government.” The President could arrest and indefinitely imprison any immigrant he chose based on such suspicions.

On June 21, 1798, Edward Livingston rose in opposition to the Alien bill, which he called “in direct violation of the constitution, and marked with every characteristic of the most odious despotism.” The crime was “exciting the suspicions of the President . . . [but] no man can tell what conduct will avoid that suspicion.” Livingston recited the litany of constitutional provisions the law violated. The “public trial” required by the Constitution had been converted into a “secret and worse than inquisitorial tribunal.” There was no process for witnesses, no assistance of counsel, no jury, no trial, nor any of the other “barriers which the wisdom and humanity of our country had placed between the accused innocence and oppressive power.”

Responding to Federalist arguments that constitutional rights only extended to citizens and not aliens, Livingston pointed out these protections applied to “all criminal prosecutions” and “all persons accused.” Such fundamental constitutional liberties, thus, applied with “no distinction between citizen and alien, between high and low, friends or opposers to the Executive power, republican and royalist.”

Livingston predicted the people would oppose the Alien law and expressly called for resistance against it. He asked, “will the people submit to our unauthorized acts . . . they ought not to submit – they would deserve the chains these measures are forging for them if they did not resist.” Livingston predicted the attack on constitutional rights would not stop with aliens, asserting these principles would soon be applied against the American people. Again, he asked whether Americans would “submit to imprisonment, or exile, whenever suspicion, calumny, or vengeance, shall mark them for ruin.” “No sir,” he exclaimed,” “they will resist this tyrannic system.” The entire house then rang with Livingston’s call for resistance. “The people will oppose it – the States will not submit to its operation. They ought not to acquiesce, and I pray to God they never may.”

He ended his speech with a religious image. “[O]ur mistaken zeal, like that of the patriarch of old, has bound one victim; it lies at the foot of the alter.” By passing this law, Congress was making a “sacrifice of the first born offspring of freedom.” He warned, “[t]he hand is already raised to strike and nothing I fear, but the voice of Heaven, can arrest the imperious blow.”

The Alien Act passed and a few weeks later, the House of Representatives took up a Sedition bill.  Livingston’s call for resistance was repeatedly cited as evidence of the need to make sedition a crime. He was accused of fomenting “seditious dispositions” by his call for resistance to the Alien Act. One Federalist Congressman, Harrison Gray Otis, said Livingston “had just preached up the duty of insurrection in his place; he had called on the people to resist the laws.” Another, Robert Goodloe Harper said a sedition law was necessary because Livingston’s “character and connections give him weight with the people [through] the filthy streams of certain newspapers [and] may gain a credit with the community.”

In response, Edward Livingston did not back down. He moved to immediately reject the Sedition bill, calling it “not only an abridgment of the liberty of the press, which the constitution has said shall not be abridged, but it is a total annihilation of the press.” He argued that he could not “see how acts made contrary to the constitution could be binding on the people.” He was challenged by Congressman Otis, who asked “who are to be the Judges?” Livingston answered with the remarkable assertion, “the people of the United States” would judge the constitutionality of these laws. “We are their servants,” he argued, “when we exceed our powers, we become their tyrants.”

During the two years after passage of the Alien and Sedition Acts, the federal government and some states went on a binge of political repression. Dozens of newspaper editors and others who spoke out against such laws were imprisoned and fined. Despite the threat of prosecution throughout this period, Edward Livingston’s call for resistance was answered resoundingly.  The people of the United States submitted petitions to Congress signed by tens of thousands, they protested and they organized politically against the Federalists. When Federalists in Congress accused Edward Livingston of being the instigator of this opposition, he disagreed. Rather, it was “from a firm sense the people have of their rights.” Livingston added. “if anything he had said or done had tended to awaken the people to a sense of their rights, he should think he had not lived in vain.”

More than 2 years later, the people spoke even more decisively against these laws by sweeping John Adams and Federalists from power and electing Thomas Jefferson and a Republican Congress. Federalists never recovered and Republicans controlled the Presidency and Congress for the next quarter century.

Even before his momentous election in 1800, however, Thomas Jefferson expressed confidence about this eventual outcome in a letter to Edward Livingston. Jefferson believed “ultimately the great body of the people are passing over” from Federalism. “The madness & extravagance of their career is what ensures it.” Jefferson assured Livingston, “the people through all the states are for republican forms, republican principles, simplicity, economy, religious & civic freedom.”

I likewise believe the “madness & extravagance” of Trumpism will be defeated. As Edward Livingston recognized, however, this will occur only through the force of will of the American people. Despite their flaws, Americans are an optimistic and decent people. Donald Trump’s view of America, on the other hand, is characterized by hatred, fear and falsehoods.  Although this perverse doctrine currently appears predominant, it will not long succeed. Livingston gave a coda to this conclusion when he announced to Thomas Jefferson that Republicans had succeeded in the 1800 New York elections, giving Jefferson New York’s critical presidential electors. Livingston concluded his letter with the Latin phrase, Magna Est Veritas et prevalebit, which means “Truth is Mighty and will prevail.”

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