University of Chicago Law Review

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This Article examines the Federalist rhetoric surrounding the brief appearance of Democratic-Republican Clubs (1794-95) and the Sedition Act of 1798. Though now universally believed anti-democratic, Federalist positions are actually a reflection of the now forgotten but in important ways superior democratic theory they held. Representation by definition requires repression since elected officials perform a political process for the people that the people are no longer permitted to perform themselves. Repression, therefore, may serve democratic ends. This simple insight permits a fresh look at Federalist rhetoric of the 1790s and the democratic processes / institutions they championed. Federalists claimed the people "deliberated" only via their representatives in the legislature and therefore that only the legislature could authoritatively declare what public opinion was or fully participate in the political deliberations of the polity. The "representative" quality of political debate justified Federalist repression. The modern system of political deliberation, in which the people "discuss" politics via the mass media and political organizations, the Federalists argued, only empowers nonrepresentative minorities. Instead, if popular participation is restricted to the right of petition and election, methods that inform and motivate representatives without intruding directly into political deliberations, the whole people can participate equally in debate via their representatives. Properly comprehending Federalist ideas radically reorients our understanding of the First Amendment and opens up many avenues of democratic reform.