Repressive Jurisprudence In The Early American Republic: The First Amendment And The Legacy Of English Law

This page intentionally left blank REPRESSIVE JURISPRUDENCE IN THE EARLY AMERICAN REPUBLIC The First Amendment and the Legacy of English Law This volume will enable readers to understand how the Revolutionary American society dedicated to the noble aspirations of the Declaration of Independence and the Bill of Rights could have adopted one of the most widely deplored statutes in American history, the Sedition Act of 1798. It demonstrates how the wholesale incorporation by the new states in 1776 of the full body of English law into the American law also meant the adoption of the English repressive commonlaw jurisprudence that had been fashioned to support the English monarchical political system that had been repudiated in the American Revolution. The unhappy result was that in the new nation as well as in England, strong criticism of the executive (King or President), the legislature (Parliament or Congress), the judiciary, and Christianity was criminalized. Despite the First Amendment, freedom of speech and press were dramatically restricted for 150 years as American courts enforced the repressive jurisprudence until well into the 20th century. This book will be of keen interest to all concerned with the Early Republic, freedom of speech, and the evolution of American constitutional jurisprudence. Because it addresses the much-criticized Sedition Act of 1798, one of the most dramatic illustrations of this repressive jurisprudence, the book will also be of interest to Americans concerned with preserving free speech in wartime. Phillip I. Blumberg is Dean and Professor Emeritus at The University of Connecticut School of Law. After two decades of law practice on Wall Street and service as the CEO of a New York Stock Exchange–listed financial corporation, he turned to legal teaching and scholarship. He is the country’s leading authority on corporate groups and the author of path-breaking books including The Multinational Challenge to Corporation Law and the magisterial five-volume treatise Blumberg on Corporate Groups (2nd edition). Six years ago, he started his study of the early American jurisprudence; this volume is the result. To my grandchildren, Andrew, Emily, Phillip, Gwen, Sarah, Kathryn, Elizabeth, Christopher, Alexander, and Caroline, and to all the nation’s other children who will determine its future Repressive Jurisprudence in the Early American Republic THE FIRST AMENDMENT AND THE LEGACY OF ENGLISH LAW Phillip I. Blumberg School of Law, The University of Connecticut CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521191357 © Phillip I. Blumberg 2010 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2010 ISBN-13 978-0-511-78843-7 eBook (EBL) ISBN-13 978-0-521-19135-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Contents Acknowledgments 1 2 page xiii Political and Jurisprudential Worlds in Conflict in the New Republic Politics in the New Republic 23 A. 23 B. Introduction The Threat of “Factions,” the Rise of Political P