The Charlotte News
Saturday, August 31, 1940
Site Ed. Note: "Gag Bill" demonstrates the long lineage of occasional departures from the Bill of Rights in reactive legislation or attempted legislation by the Congress in time of particular stress to the nation. The Alien and Sedition acts were the first, the Patriot Act arguably the latest, though the jury still remains out on whether parts of the latter act, especially aspects of Title II, "Enhanced Surveillance Procedures", may be unconstitutional. For instance, one part of the act, arising under Title VII, which makes it criminal for any group or individual to provide "expert advice or assistance" to any designated foreign terrorist organization, as determined by the Secretary of State in consultation with the Attorney General and the Secretary of the Treasury, (all of course a part of the executive branch), has been held by a United States District Court in California in early 2004 to be unconstitutionally vague and tending to chill First Amendment rights to freedom of speech and association.
The Alien and Sedition acts were passed ostensibly in response to alleged hostile actions by the French revolutionary government. Of the four acts passed in 1798, three dealt exclusively with aliens, the Naturalization Act, extending the time for residency to acquire citizenship from five to fourteen years, and the Alien Act and Alien Enemies Act which gave the president power to imprison any alien suspected of hostile actions to the government of the United States (the latter thus not dissimilar to the Patriot Act in its ultimate import). The fourth, the Sedition Act, allowed for the conviction and imprisonment of anyone, alien or not, who published statements critical of the president or Congress. Eventually the unpopular acts expired by sunset provisions in 1800 and 1801, or, as in the case of the Naturalization Act, was overturned by the Jeffersonian anti-Federalists after the election of 1800 in which the party swept to power in the White House and Congress.
The acts had been designed to limit both criticism of the Federalist government under John Adams as well as to thwart immigration by the French, who had been actively courted by the Jeffersonians who favored the French revolutionary government.
Shortly after their passage in 1798 the Kentucky and Virginia legislatures passed counter resolutions, those in Kentucky drafted by Vice-President Jefferson and those in Virginia by James Madison. The resolutions provided that the federal government was established by compact with the states and that, by provision of the Tenth Amendment, the government could not exercise power not specifically delegated to it in the Constitution, the rest being reserved to the states. The Kentucky Resolutions stated that the only enumerated powers of the Congress to pass criminal laws regarded treason, counterfeiting, piracy and other crimes on the high seas, and offenses against the laws of nations, and thus any other criminal laws passed by Congress were void and could be summarily nullified by the states. They went on to say that "alien friends" were citizens of the states where they reside and that no power had been granted to Congress by the Constitution to act with regard to them, thus allowing nullification of the Alien laws. The Resolutions also held it to be a violation of Due Process to enable the President to deport aliens without trial. As to the Sedition Act, they stated that since the First Amendment guarded "in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violates either throws down the sanctuary which covers the others; and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals." That is, Jefferson saw the protections of press, speech, and religion as one freedom and violation of one component automatically abused each of the others.
Although the Resolutions had no significant impact of themselves, as the reason for them soon disappeared from the political landscape, their reasoning was brandished 34 years after the death on the same Independence Day of both Thomas Jefferson and John Adams to justify something that no doubt would have horrified Jefferson and Adams, the split of the nation and secession of the South over the issue of slavery. The Resolutions made explicitly plain their proponents' desire to maintain the union.
When boiled to its Constitutional argument, the 1860 issue was whether the slave constituted mere chattel or was a citizen within the meaning of the Due Process clause of the Fifth Amendment, and even if so, whether or not the proscription of acting in derogation of Due Process commanded only the Congress and not the individual states, thus leaving to the states to decide to whom or whether Due Process applied. Hence, as thus applied, the argument Jefferson had advanced in a more general sense to preserve individual liberty and thus to restrict the government in passing laws violative of it had been turned on its head to deny individual liberty. This latter argument, we term, not States Rights, but rather "Stets Riiights".
The Thirteenth Amendment abolishing involuntary servitude, the Fourteenth Amendment insuring Equal Protection of the laws and Due Process of law to all citizens of the several states became necessary in the wake of the Civil War to clarify the matter, after the deaths of some estimated 618,000 Americans, over two-thirds of whom had died from disease rather than battle. Yet, even after these amendments, the Fifteenth Amendment providing the right to vote to former slaves and the attempt by Congress to pass civil rights legislation, still the machinations of the South, its recalcitrant ruling orders, maintained in large part the system existing in some sense, and out of pure spite by the white masters deprived of their chattel, in worse condition than during slavery, took yet another hundred years before the enactment of the Civil Rights Act of 1964, the Voting Rights Act of 1965, coupled with the elimination of the poll tax by Constitutional Amendment in 1962, and of course in 1954-55, Brown v. Board of Education ordering the desegregation of public schools "with all deliberate speed", and the deaths of many more Americans in the process, before the ugliness and disease, promulgated and perpetuated by toothless fetched eidola, born of three centuries of dark habit and lazy, ill-bred thought, would finally begin to subside in the greater majority of the South.
The debate of course between a strong central government and states rights has raged at varying times during the country's history over various issues. It is at the heart of the differing philosophies of government typically voiced as the primary difference between the modern Republican Party and the modern Democratic Party, the former, ironically the party of Lincoln, usually favoring a weaker central government and stronger authority to the individual states and local communities, an early Jeffersonian concept. Yet again with irony, the Democratic Party, usually associated as the party of Jefferson, is typically aligned with broader enforcement of civil liberties by the federal government upon the actions of the states and local government entities. How it all doth become confused in time. (Pity the poor alien whether a hundred years ago or today, who must, in learning American history, contend with labels and perhaps conclude quite logically that the "Republican Party" of Jefferson is the same Republican Party of today--which of course it not only wasn't but was by and large the opposing party, at least of the Federalist Party, which became more or less the Whigs which became, after splintering into the Know-Nothings of Millard Fillmore, more or less the Republican Party first of John C. Fremont of California in 1856 and then Lincoln...who actually abandoned the Republicans in 1864 and formed the Union Party. The Democrats at least have been fairly consistent in name since Andrew Jackson in 1828. But before that, add the woe to the pity, the Democrats had been both the "Republicans" and "anti-Federalists", then the Democrat-Republicans, before dropping the hyphen, at least more or less.)
In a climate where increasingly it appears to a large number of our people that it is appropriate to limit the rights of aliens, maybe even to give up their own once alien but turned inalienable rights for the harsh and reckless expediency of the myth of insular safety, (one usually dies at home in bed of natural causes), it is worth remembering the warning words of Jefferson:
"That the friendless alien has been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather has already followed; for already has a Sedition Act marked him as a prey. That these and successive acts of the same character, unless arrested on the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron; that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is everywhere the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition Acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers to whom the mild spirit of our country and its laws had pledged hospitality and protection; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of Justification, the sacred force of truth, and the forms and substance of law and justice."
Escape From This Trap Is by Way of the Top
Most people will welcome the State's cracking down on drunken drivers and liquor runners in Mecklenburg County. Without any derogation to County Recorder's Court, it may be said that the record of drunken driving cases tried there shows a surprisingly large proportion of acquittals.
Furthermore, local courts have allowed themselves to be made easy dupes to the bootleg ring's scheme of regaining confiscated liquor cars. Hitherto it has been enough that somebody come forward and show proof of a recorded lien against the automobile. But the State is going to inquire into the validity of those liens. It suspects collusion.
After all is said and done, however, no matter how stern the inferior courts may be with drunken drivers, there is always a way by which the guilty may escape punishment. That is by demanding a jury trial or appealing from a conviction--in short, by having the cases transferred to Superior Court.
Once docketed there, the odds are one-sided in favor of the drunken drivers. The cases may not be called for two or three years, by which time witnesses will have forgotten the circumstances or moved away and the whole business will have become cold potatoes.
Even if the cases are called the defendants still have every chance of getting off scot-free. As in those twenty consecutive drunken driving actions examined by The News last year.
Of those twenty alleged drunken drivers, fourteen had their cases nol-prossed. That left six. Two cases were remanded to the lower courts for judgment. That left four. Two defendants offered and were allowed to plead guilty to speeding or reckless driving, less offenses which entail no loss of driving licenses. That left two, and these two were tried by juries which in Mecklenburg are notoriously loathe to convict drunken drivers.
And even if they be convicted and the law cracks down by sending them to jail, sometimes they just don't go. They just don't.
Sabath Proposes Suspension Of the Bill of Rights
The most hysterical bill yet to come out of the Congress, with the exception of the one for the deportation of Harry Bridges, is H.R. 10289, sponsored by Representative Sabath of Illinois, chairman of the House Rules Committee. Among other things, it provides that:
"Whoever (a) engages in fifth-column activities or un-Americanism, or (b) willfully and deliberately, by spoken or written words, justifies or attempts to justify fifth-column activities or un-Americanism, or (c) plants, publishes, edits, issues, circulates, publicly displays, or possesses any book, paper, pamphlet, document, poster, or written or printed matter in any other form containing fifth-column activities... shall upon conviction thereof be fined not more than $5,000 or imprisoned for not more than 21 years, or both."
And goes on to define "fifth-column activities" and "un-Americanism" as including:
"... inciting racial or religious prejudice, or aiding or comforting any foreign government to the injury or detriment of the United States, or stirring or promoting internal discord within the United States by causing others to commit acts injurious to the Government of the United States..."
The bill is obviously aimed at the suppression of such Nazi propaganda agencies as the German Library of Information in New York, and such preachers of racial hatred as the Ku Klux Klan, the German-American Bund, Father Coughlin's Social Justice and Robert Rice Reynolds' Vindicator. But the cure promises to be worse than the disease.
The provision about printing would probably end by making it impossible to get entirely legitimate matter before the public, since the only safe course for the printer would be to refuse to set up anything which anybody called "un-American." So much follows inevitably from the broad language of the section defining the terms used. It would be quite possible under this law to suppress the bitterness of, say, Mr. Bullitt, who has been implicitly charged with "treason" by United States Senators or to lock up anybody who reported Burt Wheeler, for the next twenty years.
And the provision about possession goes off the deep end even more blindly. Under it, we ourselves, could be jailed immediately. For as we write, our desk has on it various propaganda works of the German Library of Information, the Communist handbook, etc.
The whole measure is an outright repudiation of the First Amendment to the Constitution. Fifth Column activities need to be watched and curbed, of course. But we still decline to believe that the way to save Americanism is to begin by repudiating the rights which are the essence of all that is genuinely American.
Caesar Neither Comes Nor Conquers, but Only Sees
The great offensive of Italy's cardboard Caesar against Greece has apparently collapsed as subtly as the promised offensive against Egypt.
As a matter of fact, and as we pointed out when the uproar began, it is improbable that he ever had in mind the actual invasion of Greece. What he was up to was an attempt to scare the little country out of its agreement with England and into handing over concessions in Corfu, which dominates the Adriatic, and perhaps in other Greek islands lying in the Aegean in the vicinity of the Dodecanese, the Italian-owned group off the coast of Turkey.
But all he seems to have achieved is the burning of his fingers. Russia's acting up in the case of Rumania was undoubtedly a warning that she will tolerate no edging toward the Dardanelles by even the most indirect methods. For eventually it meant that she was getting into position to sweep into Yugoslavia if necessary--a move which would paralyze Italy.
That is not to say that Russia was out to play Britain's game--far from it. Merely, she is interested in saying that the Axis is not too powerful in the Balkans. Nevertheless, the move did inevitably serve Britain.
Meantime, however, Britain also has been making life unhappy for the great brag pot. It quickly became apparent that she was prepared to take advantage of the slightest move on the part of Italy to seize Corfu on her own account. That would put the whole Adriatic coast of Italy in easy reach of British bombing planes and naval vessels.
More important still, the British were also quietly proving that the old cunning which distinguished Britishers like Lawrence of Arabia was still functioning--in lining up French Central Africa. The move flanks Libya. Far from taking the offensive anywhere, Signor Mussolini may find himself fighting to keep from being thrown entirely out of Africa before the Winter is over.
Thin Nazi Tales Leave a Senator Out on a Limb
Senator Bone, isolationist from Washington, who started out to charge the Administration with having deliberately planned to get the American Legion blown up by German mines in order to get us into war, has dropped the matter like a hot potato.
The Legion arrived safely in port, with passengers and crew laughing at the German claims. The measure of the truth of those claims is found in one, gravely put out over the radio from Berlin, that the ship had run out of fuel and food and had to be rescued from the mine fields by the U.S. Navy. In point of fact her refrigerators were heavily stocked when she docked, she had fuel enough for a return voyage to Europe, and the navy hadn't been near her.
In view of such cock and bull, it is altogether reasonable to deduce from the fact that the commander of the ship reported that no mines were sighted, that no mines had been laid, and that the Germans were simply lying from start to finish. It seemed improbable all along that the Germans could have mined the area in question, for it is heavily guarded by the British Navy and air force.
What was the purpose? Perhaps nothing more than to create a diversion and to set suckers like Bone to popping off with stuff designed to increase suspicion of Britain, sympathy for Germany in this country. But it is also possible that the story was intended to make the ship change her course and pass northward through British mine fields--in the hope that she would be blown up and so set off trouble between the United States and England. Or August's story that it was done to kidnap Princess Martha of Norway may be true.
Bone should be more careful with his suspicions next time.
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