It looks at American constitutional liberties and how they have fared in times of war and emergencies. It is more scholarly rather than partisan hackery of the 'enemy within' narrative of modern American political discourse.

The Sedition Act allowed the government to fine or imprison someone based upon writings that have been against the government in a 'false, scandalous, and malicious' manner. Which is pretty broad. It also required that it be done with the intent of bringing the government into 'contempt or disrepute; or to excite against them ... the hatred of the ... people'.

It was intended as a war time act to protect the nation from internal sabotage but it was quickly used by the Federalists as a political weapon in an election year. Four of the five most prominent Republican newspapers were shut down and their main agitators tried and imprisoned.

Geoffrey R. Stone argues that to understand the Federalist and Republican arguments over the Sedition Act the English law construct of Seditious Libel has to be understood.

Federalist busts from loojie's photostream.

Seditious libel dates back to 1275 and English law. Originally it was intended to stop falsehoods against the King, but by the seventeenth century English judicial practice had extended that to truths about the King as well. Effectively it was illegal to criticize the King in a manner which would bring his rule into disrepute. Laws of this nature end up being enforced arbitrarily at best, selectively at worst and usually for political reasons.

English judicial practice extended the protections from criticism wider than just the King. Stone writes:

Seventeeth-century judges punished as seditious libel any criticism of 'any public man' or of any public 'law or institution whatever'.

This was exceptionally effective of restricting the presses and media of the day.

James Madison refuted this view of seditious libel; arguing that since Republican government was responsible to their constituents it is a right for individuals to be able to freely criticize their government and representatives in public.

Madison believed the sedition action, and seditious liberal, violated the First Amendment. Stone writes:

... because it [sedition act] undermined 'the responsibility of public servants and public measures to the people' and embraced the 'exploded doctrine that the administrators of the Government are masters, and not the servants, of the people'.

Where was the Australian James Madison in the 19thC? Madison would have to be the foremost political scientist of the enlightenment. I cannot think of any that have supplanted him since.

One of the premises of 19thC Australian Republicanism was that increasing liberty leads to increasing moral expression and consequent self-governance. The goal being moral perfection and the lack of need of a public government of any kind. Geoffrey Stone writes in War and Liberty that despite fears and concerns, even with the secretive Bush Administration, there has been an increasing morality in the conduct of the executive such that liberty is increasingly preserved. Stone writes:

Nonetheless, I am confident that the major restrictions of civil liberties discussed ... would be less thinkable today than they were in 1798, 1861, 1917, 1942, 1950, or 1969. In terms of both the evolution of constitutional doctrine and the development of a national consciousness about civil liberties, we have made demonstrable progress.

In essence the American system of republicanism has promoted a culture of liberty and a culture of protecting, as well as expanding, civil liberties. This is probably the greatest role of the Bill of Rights in political history. Even countries without such as an entrenched constitutional set of rights, such as Australia, often claim things such as freedom of speech as both a natural and political right.

Stone continues:

In the past the United States has imprisoned such national leaders as Matther Lyon, Celement Vallandigham and Eugene Debs for criticizing a war. But in 2004 it was inconceivable that the Bush Administration could prosecute Howard Dean, even though his criticisms of the war in Iraq were every bit as inflammatory as the criticisms of Lyon, Vallandigham, and Debs.

I recall being amazed at what those names said that got them imprisoned. Debs, for instance, questioned the morality of a draft during WWI in a speech. A common political refrain in the last seven years.

This is a profound and hard-bought achievement. We should neither take it for granted, nor under-estimate its significance. It is a testament to the strength of American democracy.

The judicature is often hopelessly political, framing its decisions within what is politically and democratically achievable. Rather than the stalwart and tenured branch protecting the individual from the tyranny of the executive, the judicature has been a political branch. Often it is the morality of the citizenry, constitutional liberalism (republicanism) and the occasional judge themselves that is limiting what is possible in the forms of executive tyranny.