- What Every Lawyer Should Know
If there is an aristocracy of wealth and talent in America, then the corporate lawyers would hold a high station in the peerage. Phillip Blumberg would rank near the top in that aristocracy. He has the pedigree: Harvard College, Harvard Law School, Wall Street, dean of a prestigious law school, authorship of the definitive volumes on corporate law. No one can question his privilege to tell lawyers what they should know.
In his sweeping and copiously detailed Repressive Jurisprudence, Blumberg offers “a legal scholar’s analysis of the full legal system of which the Sedition Act [of 1798 infamy] and criminal libel were only a part. Although there are a number of splendid accounts of the period by historians, they are not complete from a lawyer’s point of view” (p. 21). While “splendid” is certainly a complimentary description of the copious secondary literature on the Alien and Sedition Acts era, and Blumberg relies heavily on this literature, he implies that other lawyers are not taking the right lessons from existing accounts or are not paying attention to them.
The story he tells is already familiar to historians. In the 1790s, seething partisan passions had given rise to standing national political parties, an event that many politicians decried as an invitation to civil disorder at the same time as they aligned themselves with one or the other of the two factions. The Federalists, a party that Alexander Hamilton formed to pass his domestic program, controlled both houses of Congress, the presidency, and the federal courts. They called for a strong federal government aligned with commercial interests; opposed the French Revolution; and, in the latter part of the decade, fomented a war scare against the French. For the opposition Republican Party, a minority in both houses of Congress, the Federalists seemed to be closet monarchists or worse. Republicans preferred a very limited national government and favored the debtor interests and the principles, if not the turn of events, in the French Revolution. The Federalists saw England’s battle against revolutionary France as a war of order and piety against chaos and atheism, [End Page 626] and the very existence of the new United States seemed imperiled by foreign agents and their domestic allies, among whose number they classed the more radical of the Republicans and their immigrant allies. In 1798, amidst this crisis, the Federalist Party majority in Congress passed and President John Adams signed into law four acts that greatly extended the power of the federal government based on a very loose construction of the powers of Congress under the Constitution. This posed a serious threat to the newly ratified First Amendment protections of freedom of speech and press. The Sedition Act was the most far reaching of these four legislative enactments. It imposed fines and prison time “if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States.” The debate on the Sedition Act and the subsequent trials of opposition party newspaper editors for attacking John Adams’ administration called into question the fundamentals of republican self-government, the relationship between the federal government and the states, and the future of freedom of the press.
Though it is not written for historians, it is the author’s intent to write a history. Thus it is fair for this reviewer (a legal and constitutional historian) to assess the work in light of the historical scholarship and standards of presentation. In that light, the first portion of the book is a disappointment, but the second half is a genuine contribution to our knowledge—indeed, it almost seems a different work by a different author.
What will the lawyer find here? “As we will see, [the Sedition Act] was...