The founders, contrary to some of their own expectations, soon divided into rival political parties under the new governing system. It is one of the great historical ironies that many who had helped to ratify the powerful language of the First Amendment ignored its principles in seeking to silence political speakers with whom they disagreed.
Few milestones were more important in this development than the Federalists’ adoption of the Alien and Sedition Acts in 1798 during the United States’ undeclared war with France: The Alien Act made it more difficult for immigrants to become citizens, and the Sedition Act made it a crime to criticize the president or the government of the United States. Although the Supreme Court did not have occasion to rule on the constitutionality of these laws at the time they were adopted, scholarly consensus today recognizes the Sedition Act as a betrayal of revolutionary ideals and First Amendment freedoms. As Justice William J. Brennan Jr. wrote years later in New York Times Co. v. Sullivan (1964), “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” The law provided fodder for a host of speeches and publications that pushed interpretations of the First Amendment in an increasingly libertarian direction. As Brennan noted, the Sedition Act “first crystallized a national awareness of the central meaning of the First Amendment.”
Jefferson and Madison may have unwisely sown the seeds for future disunion when they argued in the Kentucky and Virginia Resolutions of 1798 for state “interposition” against federal legislation that interfered with First Amendment rights, but they were on target in questioning the source from which Congress derived authority for such legislation. Madison elaborated further on these arguments in his Report of 1800, in which he argued that a law that would permit congressional regulation of speech and press might also be interpreted to deny religious freedom. The so-called Revolution of 1800 was not achieved through physical force but through the ballot box. When elected president, Jefferson pardoned individuals who had been convicted under the Sedition Act, and despite some arrests during the Civil War, the national slate remained relatively free of such legislation until World War I again stirred sentiments against possible espionage and sedition.
Although the Bill of Rights did not provide normative law for the states, it set a standard that increasing numbers of states would emulate over time. In 1833 Massachusetts became the last state to abolish state support for an established church. At about the same time, however, Alexis de Tocqueville observed that public opinion in the United States was so powerful that it sometimes enforced a “tyranny of the majority.” This was especially evident in the incorporation of religious teaching within the increasingly universalized public education systems that states provided. While southern European and Roman Catholic immigrants well recognized that public schools reflected the dominant Protestant Weltanschauung, those in the majority seemed almost oblivious to their own presuppositions. In Boston, a judge ruled in Commonwealth v. Cooke (1859) that a schoolteacher was justified in beating a Roman Catholic student who had refused to recite the Lord’s Prayer and the Ten Commandments from the King James Version of the Bible. Much like fundamentalist Protestants would do in the 20th century, Roman Catholics often withdrew their children from public schools and established their own institutions of learning.
On another front, however, religion flourished without state sponsorship, providing much of the moral impetus for the anti-slavery movement and later for a national prohibition of alcohol and for woman’s suffrage. The nation’s diversity increased as more immigrants arrived and spawned a number of homegrown religions. Among them were the Latter-day Saints, whose beliefs forced courts to re-examine the lines between religious belief, advocacy, and practice.