Front Page Titles (by Subject) The Kentucky and Virginia Resolutions - Liberty and Order: The First American Party Struggle
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The Kentucky and Virginia Resolutions - Lance Banning, Liberty and Order: The First American Party Struggle 
Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).
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The Kentucky and Virginia Resolutions
With the Federalists in control of all three branches of the federal government, Jefferson and Madison decided to arouse the states for a counterattack on the repressive legislation of the summer. Jefferson gave a draft of legislative resolutions to John Breckinridge of Kentucky. Madison drafted a second set, which he would give to Virginia’s John Taylor. Breckinridge or his fellow Kentucky legislators softened Jefferson’s resolutions considerably before they passed the state house of representatives on 10 November 1798, replacing his suggestion that the rightful remedy for federal usurpations was a “nullification” of such acts by each state acting on its own with a declaration that unconstitutional acts were “void and of no force” and a call for the other states to join Kentucky in “requesting their repeal.” The authorship of both sets of resolutions was a closely guarded secret until 1809, when Taylor mentioned Madison in print, and Jefferson’s draft of the Kentucky Resolutions would not become public until later still. The two sets of resolutions nevertheless proved hugely controversial at the time, and during the succeeding generation, their elucidation of a compact theory of the Constitution and a doctrine of state interposition against unconstitutional federal laws would become a groundwork for the doctrines of nullification and secession.
thomas jefferson Draft of the Kentucky Resolutions October 1798
1. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general Government for special purposes,—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
2. Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in addition to the act entitled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the day of June, 1798, entitled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution), are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.
3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, entitled “An Act in addition to the act entitled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.
4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the day of July, 1798, entitled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.
5. Resolved, That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808;” that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.
6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act entitled “An Act concerning aliens,” is contrary to the Constitution, one amendment to which has provided that “no person shall be deprived of liberty without due process of law”; and that another having provided that “in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense,” the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior”; and the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the General Government who already possesses all the Executive, and a negative on all legislative powers.
7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.
8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man or body of men on earth: that in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes, punish it themselves whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors, and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism—free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the alien and sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers to whom the mild spirit of our country and its laws have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, not merely as the cases made federal (casus foederis), but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.
9th. Resolved, That the said committee be authorized to communicate by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.
james madison The Virginia Resolutions 21 December 1798
In the House of Delegates
Resolved, that the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
That this Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which, it pledges all its powers; and that for this end, it is their duty, to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them, can alone secure its existence, and the public happiness.
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
That the General Assembly doth also express its deep regret that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.
That the General Assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government; and which by uniting legislative and judicial powers, to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the federal constitution: and the other of which acts, exercises in like manner a power not delegated by the constitution, but on the contrary expressly and positively forbidden by one of the amendments thereto; a power which more than any other ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.
That this State having by its convention which ratified the federal constitution, expressly declared, “that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states recommended an amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other.
That the good people of this Commonwealth having ever felt and continuing to feel the most sincere affection for their brethren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each, for cooperating with this State in maintaining unimpaired the authorities, rights, and liberties, reserved to the States respectively, or to the people.
That the Governor be desired to transmit a copy of the foregoing resolutions to the Executive authority of each of the other States, with a request, that the same may be communicated to the Legislature thereof.
And that a copy be furnished to each of the Senators and Representatives, representing this State in the Congress of the United States.
State Replies to the Resolutions
Ten of the fourteen other states responded to Kentucky and/or Virginia, in every case condemning state interference in the federal sphere. The resolutions of Rhode Island and New Hampshire were representative in content and tone.
The State of Rhode Island and Providence Plantations to Virginia February 1799
Certain resolutions of the Legislature of Virginia, passed on the 21st of December last, being communicated to the Assembly,—
1. Resolved, That, in the opinion of this legislature, the second section of the third article of the Constitution of the United States, in these words, to wit—“The judicial power shall extend to all cases arising under the laws of the United States”—vests in the federal courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States.
2. Resolved, That for any state legislature to assume that authority would be—
1st. Blending together legislative and judicial powers;
2nd. Hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort for vindicating its own opinions but the strength of its own arm;
3rd. Submitting most important questions of law to less competent tribunals; and,
4th. An infraction of the Constitution of the United States, expressed in plain terms.
3. Resolved, That although, for the above reasons, this legislature, in their public capacity, do not feel themselves authorized to consider and decide on the constitutionality of the Sedition and Alien Laws (so called), yet they are called upon by the exigency of this occasion to declare that, in their private opinions, these laws are within the powers delegated to Congress, and promotive of the welfare of the United States.
4. Resolved, That the governor communicate these resolutions to the supreme executive of the state of Virginia and at the same time express to him that this legislature cannot contemplate, without extreme concern and regret, the many evil and fatal consequences which may flow from the very unwarrantable resolutions aforesaid… .
New Hampshire Resolution on the Virginia and Kentucky Resolutions 15 June 1799
The legislature of New Hampshire, having taken into consideration certain resolutions of the General Assembly of Virginia, dated December 21, 1798; also certain resolutions of the legislature of Kentucky, of the 10th of November 1798—
Resolved, That the legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department.
That if the legislature of New Hampshire, for mere speculative purposes, were to express an opinion on the acts of the general government commonly called “the Alien and Sedition Bills,” that opinion would unreservedly be that those acts are constitutional and, in the present critical situation of our country, highly expedient.
That the constitutionality and expediency of the acts aforesaid have been very ably advocated and clearly demonstrated by many citizens of the United States, more especially by the minority of the General Assembly of Virginia. The legislature of New Hampshire, therefore, deem it unnecessary, by any train of arguments, to attempt further illustration of the propositions, the truth of which, it is confidently believed, at this day, is very generally seen and acknowledged.
Congressional Report Defending the Alien and Sedition Laws 21 February 1799
The committee to whom were referred the memorials of sundry inhabitants … , complaining of the act entitled “An act concerning aliens,” and other late acts of Congress, submit the following report:
It is the professed object of these petitions to solicit a repeal of two acts passed during the last session of Congress, the one “An act concerning aliens,” the other “An act in addition to an act for the punishment of certain crimes against the United States,” on the ground of their being unconstitutional, oppressive, and impolitic.
The committee cannot, however, forbear to notice that the principal measures hitherto adopted for repelling the aggressions and insults of France have not escaped animadversion.
Complaints are particularly directed against the laws providing for a navy; for augmenting the army; authorizing a provisional army and corps of volunteers; for laying a duty on stamped vellum, parchment, and paper; assessing and collecting direct taxes; and authorizing loans for the public service.
With these topics of complaint, in some of the petitions, are intermingled invectives against the policy of the government from an early period and insinuations derogatory to the character of the legislature and of the administration… .
The act concerning aliens and the act in addition to the act entitled an act for the punishment of certain crimes shall be first considered.
Their constitutionality is impeached. It is contended that Congress have no power to pass a law for removing aliens.
To this it is answered that the asylum given by a nation to foreigners is mere matter of favor, resumable at the public will. On this point abundant authorities might be adduced, but the common practice of nations attests the principle.
The right of removing aliens, as an incident to the power of war and peace, according to the theory of the Constitution, belongs to the government of the United States. By the fourth section of the fourth article of the Constitution, Congress is required to protect each state from invasion, and is vested by the eighth section of the fifth article with power to make all laws which shall be proper to carry into effect all powers vested by the Constitution in the government of the United States or in any department or officer thereof; and to remove from the country, in times of hostility, dangerous aliens, who may be employed in preparing the way for invasion, is a measure necessary for the purpose of preventing invasion and, of course, a measure that Congress is empowered to adopt… .
This law is said to violate that part of the Constitution which provides that the trial of all crimes, except in cases of impeachment, shall be by jury; whereas this act invests the President with power to send away aliens on his own suspicion, and thus to inflict punishment without trial by jury.
It is answered, in the first place, that the Constitution was made for citizens, not for aliens, who of consequence have no rights under it, but remain in the country and enjoy the benefit of the laws, not as matter of right, but merely as matter of favor and permission; which favor and permission may be withdrawn whenever the government charged with the general welfare shall judge their further continuance dangerous.
It is answered, in the second place, that the provisions in the Constitution relative to presentment and trial of offenses by juries, do not apply to the revocation of an asylum given to aliens. Those provisions solely respect crimes, and the alien may be removed without having committed any offense, merely from motives of policy or security. The citizen, being a member of society, has a right to remain in the country, of which he cannot be disfranchised, except for offenses first ascertained on presentment and trial by jury.
It is answered, thirdly, that the removal of aliens, though it may be inconvenient to them, cannot be considered as a punishment inflicted for an offense, but, as before remarked, merely the removal from motives of general safety of an indulgence which there is danger of their abusing, and which we are in no manner bound to grant or continue.
The “Act in addition to an act entitled an act for the punishment of certain crimes against the United States,” commonly called the “sedition act,” contains provisions of a two-fold nature: first, against seditious acts; and, second, against libelous and seditious writings. The first have never been complained of, nor has any objection been made to its validity. The objection applies solely to the second; and on the ground, in the first place, that Congress have no power by the Constitution to pass any act for punishing libels, no such power being expressly given; and all powers not given to Congress being reserved to the states, respectively, or the people thereof.
To this objection it is answered that a law to punish false, scandalous, and malicious writings against the government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the Constitution in the government of the United States and in the departments and officers thereof, and, consequently, such a law as Congress may pass; because the direct tendency of such writings is to obstruct the acts of the government by exciting opposition to them, to endanger its existence, by rendering it odious and contemptible in the eyes of the people, and to produce seditious combinations against the laws, the power to punish which has never been questioned; because it would be manifestly absurd to suppose that a government might punish sedition and yet be void of power to prevent it by punishing those acts which plainly and necessarily lead to it; and because, under the general power to make all laws proper and necessary for carrying into effect the powers vested by the Constitution in the government of the United States, Congress has passed many laws for which no express provision can be found in the Constitution, and the constitutionality of which has never been questioned; such as the first section of the act now under consideration, for punishing seditious combinations; the act passed during the present session for punishing persons who, without authority from the government, shall carry on any correspondence relative to foreign affairs with any foreign government; the act for the punishment of certain crimes against the United States, which defines and punishes misprision of treason; the tenth and twelfth sections, which declare the punishment of accessories to piracy, and of persons who shall confederate to become pirates themselves, or to induce others to become so; the fifteenth section, which inflicts a penalty on those who steal or falsify the record of any court of the United States; the eighteenth and twenty-first sections, which provide for the punishment of persons committing perjury in any court of the United States, or attempting to bribe any of their judges; the twenty-second section, which punishes those who obstruct or resist the process of any court of the United States; and the twenty-third, against rescuing offenders who have been convicted of any capital offense before those courts; provisions, none of which are expressly authorized, but which have been considered as constitutional because they are necessary and proper for carrying into effect certain powers expressly given to Congress.
It is objected to this act, in the second place, that it is expressly contrary to that part of the Constitution which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the liberty of the press.” The act in question is said to be an abridgment of the liberty of the press and therefore unconstitutional.
To this it is answered, in the first place, that the liberty of the press consists, not in a license for every man to publish what he pleases, without being liable to punishment if he should abuse this license to the injury of others, but in a permission to publish, without previous restraint, whatever he may think proper, being answerable to the public and individuals for any abuse of this permission to their prejudice; in like manner as the liberty of speech does not authorize a man to speak malicious slanders against his neighbor, nor the liberty of action justify him in going by violence into another man’s house, or in assaulting any person whom he may meet in the streets. In the several states the liberty of the press has always been understood in this manner, and no other; and the constitution of every state which has been framed and adopted since the Declaration of Independence asserts “the liberty of the press;” while in several, if not all, their laws provide for the punishment of libellous publications, which would be a manifest absurdity and contradiction if the liberty of the press meant to publish any and every thing without being amenable to the laws for the abuse of this license. According to this just, legal, and universally admitted definition of “the liberty of the press,” a law to restrain its licentiousness in publishing false, scandalous, and malicious libels against the government, cannot be considered as an “abridgment” of its “liberty.”
It is answered, in the second place, that the liberty of the press did never extend, according to the laws of any state, or of the United States, or of England, from whence our laws are derived, to the publication of false, scandalous, and malicious writings against the government, written or published with intent to do mischief, such publications being unlawful and punishable in every state; from whence it follows, undeniably, that a law to punish seditious and malicious publications is not an abridgment of the “liberty of the press”; for it would be a manifest absurdity to say that a man’s liberty was abridged by punishing him for doing that which he never had a liberty to do.
It is answered, thirdly, that the act in question cannot be unconstitutional because it makes nothing penal that was not penal before, and gives no new powers to the court, but is merely declaratory of the common law and useful for rendering that law more generally known and more easily understood. This cannot be denied if it be admitted, as it must be, that false, scandalous, and malicious libels against the government of the country, published with intent to do mischief, are punishable by the common law; for, by the second section of the third article of the Constitution, the judicial power of the United States is expressly extended to all offenses arising under the Constitution. By the Constitution, the government of the United States is established, for many important objects, as the government of the country; and libels against that government, therefore, are offenses arising under the Constitution, and consequently are punishable at common law by the courts of the United States. The act, indeed, is so far from having extended the law and the power of the court, that it has abridged both and has enlarged instead of abridging the “liberty of the press”; for, at common law, libels against the government might be punished with fine and imprisonment at the discretion of the court, whereas the act limits the fine to two thousand dollars and the imprisonment to two years; and it also allows the party accused to give the truth in evidence for his justification, which, by the common law, was expressly forbidden.
And lastly, it is answered that had the Constitution intended to prohibit Congress from legislating at all on the subject of the press, which is the construction whereon the objections to this law are founded, it would have used the same expressions as in that part of the clause which relates to religion and religious tests; whereas the words are wholly different: “Congress,” says the Constitution [First Amendment], “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or the press.” Here it is manifest that the Constitution intended to prohibit Congress from legislating at all on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expressions would have been used, and Congress would have been “prohibited from passing any law respecting the press.” They are not, however, “prohibited” from legislating at all on the subject, but merely from abridging the liberty of the press. It is evident they may legislate respecting the press, may pass laws for its regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not “abridge” its “liberty.” Its liberty, according to the well-known and universally admitted definition, consists in permission to publish, without previous restraint upon the press, but subject to punishment afterwards for improper publications. A law, therefore, to impose previous restraint upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press, and, as such, unconstitutional.
The foregoing reasoning is submitted as vindicating the validity of the laws in question.
Although the committee believe that each of the measures adopted by Congress during the last session is susceptible of an analytical justification on the principles of the Constitution and national policy, yet they prefer to rest their vindication on the true ground of considering them as parts of a general system of defense, adapted to a crisis of extraordinary difficulty and danger.
It cannot be denied that the power to declare war, to raise and support armies, to provide and maintain a navy, to suppress insurrections, and repel invasions, and also the power to defray the necessary expense by loans or taxes, is vested in Congress. Unfortunately for the present generation of mankind, a contest has arisen and rages with unabated ferocity, which has desolated the fairest portions of Europe and shaken the fabric of society through the civilized world. From the nature and effects of this contest, as developed in the experience of nations, melancholy inferences must be drawn, that it is unsusceptible of the restraints which have either designated the objects, limited the duration, or mitigated the horrors of national contentions. In the internal history of France, and in the conduct of her forces and partisans in the countries which have fallen under her power, the public councils of our country were required to discern the dangers which threatened the United States, and to guard not only against the usual consequences of war, but also against the effects of an unprecedented combination to establish new principles of social action on the subversion of religion, morality, law, and government. Will it be said that the raising of a small army and an eventual provision for drawing into the public service a considerable proportion of the whole force of the country was, in such a crisis, unwise or improvident?
If such should be the assertion, let it be candidly considered whether some of our fertile and flourishing states did not, six months since, present as alluring objects for the gratification of ambition or cupidity as the inhospitable climate of Egypt. What then appeared to be the comparative difficulties between invading America and subverting the British power in the East Indies? If this was a professed, not real object of the enterprise, let it be asked if the Sultan of the Ottoman empire was not really the friend of France at the time when his unsuspecting dependencies were invaded; and whether the United States were not, at the same time, loaded with insults and assailed with hostility? If, however, it be asserted that the system of France is hostile only to despotic or monarchical governments, and that our security arises from the form of our Constitution, let Switzerland, first divided and disarmed by perfidious seductions, now agonized by relentless power, illustrate the consequences of similar credulity. Is it necessary at this time to vindicate the naval armament? Rather may not the inquiry be boldly made, whether the guardians of the public weal would not have deserved and received the reproaches of every patriotic American if a contemptible naval force had been longer permitted to intercept our necessary supplies, destroy our principal source of revenue, and seize, at the entrance of our harbors and rivers, the products of our industry destined to our foreign markets? If such injuries were at all to be repelled, is not the restriction which confined captures by our ships solely to armed vessels of France a sufficient proof of our moderation?
If, therefore, naval and military preparations were necessary, a provision of funds to defray the consequent expenses was of course indispensable; a review of all the measures that have been adopted since the establishment of the government will prove that Congress have not been unmindful of the wishes of the American people to avoid an accumulation of the public debt; and the success which has attended these measures affords conclusive evidence of the sincerity of their intentions. But to purchase sufficient quantities of military supplies to establish a navy and provide for all the contingencies of an army without recourse to new taxes and loans, was impracticable; both measures were, in fact, adopted. In devising a mode of taxation, the convenience and ease of the least wealthy class of the people were consulted as much as possible; and, although the expenses of assessment have furnished a topic of complaint, it is found that the allowances are barely sufficient to ensure the execution of the law, even aided as they are by the disinterested and patriotic exertions of worthy citizens; besides, it ought to be remembered that the expenses of organizing a new system should not, on any principle, be regarded as a permanent burden on the public.
In authorizing a loan of money, Congress have not been inattentive to prevent a permanent debt; in this particular, also, the public opinion and interest have been consulted. On considering the law, as well as the manner in which it is proposed to be carried into execution, the committee are well satisfied in finding any excess in the immediate charge upon the revenue is likely to be compensated by the facility of redemption which is secured to the government.
The alien and sedition acts, so called, form a part, and in the opinion of the committee an essential part, in these precautionary and protective measures adopted for our security.
France appears to have an organized system of conduct towards foreign nations to bring them within the sphere and under the dominion of her influence and control. It has been unremittingly pursued under all the changes of her internal polity. Her means are in wonderful coincidence with her ends: among these, and not least successful, is the direction and employment of the active and versatile talents of her citizens abroad as emissaries and spies. With a numerous body of French citizens and other foreigners, and admonished by the passing scenes in other countries as well as by aspects in our own, knowing they had the power, and believing it to be their duty, Congress passed the law respecting aliens, directing the dangerous and suspected to be removed and leaving to the inoffensive and peaceable a safe asylum.
The principles of the sedition law, so called, are among the most ancient principles of our governments. They have been engrafted into statutes, or practiced upon as maxims of the common law, according as occasion required. They were often and justly applied in the revolutionary war. Is it not strange that now they should first be denounced as oppressive, when they have long been recognized in the jurisprudence of these States?
The necessity that dictated these acts, in the opinion of the committee, still exists.
So eccentric are the movements of the French government that we can form no opinion of their future designs towards our country. They may recede from the tone of menace and insolence to employ the arts of seduction, before they astonish us with their ultimate designs. Our safety consists in the wisdom of the public councils, a cooperation, on the part of the people with the government, by supporting the measures provided for repelling aggressions, and an obedience to the social laws.
After a particular and general review of the whole subject referred to their consideration, the committee see no ground for rescinding these acts of the legislature. The complaints preferred by some of the petitioners may be fairly attributed to a diversity of sentiment naturally to be expected among a people of various habits and education, widely dispersed over an extensive country; the innocent misconceptions of the American people will, however, yield to reflection and argument, and from them no danger is to be apprehended.
In such of the petitions as are conceived in a style of vehement and acrimonious remonstrance, the committee perceive too plain indications of the principles of that exotic system which convulses the civilized world. With this system, however organized, the public councils cannot safely parley or temporize, whether it assumes the guise of patriotism to mislead the affections of the people; whether it be employed in forming projects of local and eccentric ambition, or shall appear in the more generous form of open hostility, it ought to be regarded as the bane of public as well as private tranquillity and order.
Those to whom the management of public affairs is now confided cannot be justified in yielding any established principles of law or government to the suggestions of modern theory; their duty requires them to respect the lessons of experience and transmit to posterity the civil and religious privileges which are the birthright of our country, and which it was the great object of our happy Constitution to secure and perpetuate.
Impressed with these sentiments, the committee beg leave to report the following resolutions:
Resolved, that it is inexpedient to repeal the act passed the last session, entitled “An act concerning aliens.”
Resolved, That it is inexpedient to repeal the act passed the last session, entitled “An act in addition to the act entitled lsquo;An act for the punishment of certain crimes against the United States.’”
Resolved, That it is inexpedient to repeal any of the laws respecting the navy, military establishment, or revenue of the United States.
james madison The Report of 1800
Although he had retired from national office in 1797, Madison stood for reelection to the Virginia House of Delegates in 1799 in order to defend the resolutions of 1798 against the criticisms of the other states. His Report of 1800, dated 7 January, is lengthy, but it is also one of the most important documents of the 1790s. It not only refined the doctrines of 1798, it would also prove a classic defense of First Amendment freedoms.
Whatever room might be found in the proceedings of some of the states who have disapproved of the resolutions of the General Assembly of this commonwealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty as well as dignity of the General Assembly to hasten an oblivion of every circumstance which might be construed into a diminution of mutual respect, confidence, and affection among the members of the union.
The committee have deemed it a more useful task to revise with a critical eye the resolutions which have met with this disapprobation; to examine fully the several objections and arguments which have appeared against them; and to inquire, whether there be any errors of fact, of principle, or of reasoning which the candor of the General Assembly ought to acknowledge and correct… .
The third resolution is in the words following:
That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.
On this resolution, the committee have bestowed all the attention which its importance merits: They have scanned it not merely with a strict, but with a severe eye; and they feel confidence in pronouncing that in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences.
The resolution declares, first, that “it views the powers of the Federal Government as resulting from the compact to which the states are parties,” in other words, that the federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties… .
… The committee satisfy themselves here with briefly remarking that in all the co-temporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it by the [tenth] amendment, now a part of the Constitution, which expressly declares “that the powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution or compact,” is in the judgment of the committee equally free from objection. It is indeed true that the term “States” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “States” in the resolution may have been entertained, all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the “States”: In that sense the “States” ratified it; and in that sense of the term “States,” they are consequently parties to the pact from which the powers of the Federal Government result.
The next position is that the General Assembly views the powers of the Federal Government “as limited by the plain sense and intention of the instrument constituting that compact,” and “as no farther valid than they are authorized by the grants therein enumerated.” It does not seem possible that any just objection can lie against either of these clauses. The first amounts merely to a declaration that the compact ought to have the interpretation plainly intended by the parties to it; the other, to a declaration that it ought to have the execution and effect intended by them. If the powers granted be valid, it is solely because they are granted; and if the granted powers are valid because granted, all other powers not granted must not be valid.
The resolution, having taken this view of the federal compact, proceeds to infer “that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.”
It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity as well as to the authority of the Constitution that it rests on this legitimate and solid foundation. The states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide in the last resort whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition.
It does not follow, however, that because the states as sovereign parties to their constitutional compact must ultimately decide whether it has been violated, that such a decision ought to be interposed either in a hasty manner or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties in their sovereign capacity can be called for by occasions only deeply and essentially affecting the vital principles of their political system.
The resolution has accordingly guarded against any misapprehension of its object by expressly requiring for such as interposition “the case of a deliberate,palpable and dangerous breach of the Constitution, by the exercise of powers not granted by it.” It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration or hasty determination, but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require, that the question should be discussed how far the exercise of any particular power ungranted by the Constitution would justify the interposition of the parties to it. As cases might easily be stated which none would contend ought to fall within that description, cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal as to unite every opinion in placing them within the description.
But the resolution has done more than guard against misconstruction by expressly referring to cases of a deliberate,palpable, and dangerous nature. It specifies the object of the interposition which it contemplates to be solely that of arresting the progress of the evil of usurpation and of maintaining the authorities, rights and liberties appertaining to the states, as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions and recollecting the genuine source and object of the federal constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.
But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.
On this objection it might be observed, first, that there may be instances of usurped power which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated must extend to violations by one delegated authority as well as by another, by the judiciary as well as by the executive or the legislature.
However true therefore it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
The truth declared in the resolution being established, the expediency of making the declaration at the present day may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day with those which characterized the epoch of our Revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unseasonable and improper or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.
The fourth resolution stands as follows:—
That the General Assembly doth also express its deep regret that a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable result of which would be to transform the present republican system of the United States into an absolute, or at best a mixed monarchy.
The first question to be considered is whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter.
The General Assembly having declared their opinion merely by regreting in general terms that forced constructions for enlarging the federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The Alien and Sedition Acts being particularly named in a succeeding resolution are of course to be understood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which from the circumstances of its passage as well as the latitude of construction on which it is founded, strikes the attention with singular force; and the carriage tax, distinguished also by circumstances in its history having a similar tendency. Those instances alone, if resulting from forced construction and calculated to enlarge the powers of the Federal Government, as the committee cannot but conceive to be the case, sufficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their attention to laws which have been objected to rather as varying the constitutional distribution of powers in the Federal Government than as an absolute enlargement of them; because instances of this sort, however important in their principles and tendencies, do not appear to fall strictly within the text under review.
The other questions presenting themselves are— 1. Whether indications have appeared of a design to expound certain general phrases copied from the “Articles of Confederation” so as to destroy the effect of the particular enumeration explaining and limiting their meaning. 2. Whether this exposition would by degrees consolidate the states into one sovereignty. 3. Whether the tendency and result of this consolidation would be to transform the republican system of the United States into a monarchy.
1. The general phrases here meant must be those “of providing for the common defense and general welfare.”
In the “Articles of Confederation,” the phrases are used as follows, in article VIII. “All charges of war, and all other expenses that shall be incurred for the common defense and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury.”…
In the existing Constitution, they make the following part of section 8. “The Congress shall have power, to lay and collect taxes, duties, imposts and excises to pay the debts, and provide for the common defense and general welfare of the United States.”
This similarity in the use of these phrases in the two great federal charters might well be considered as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said that in the former they were ever understood to be either a general grant of power or to authorize the requisition or application of money by the old Congress to the common defense and general welfare except in the cases afterwards enumerated which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them.
That notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the federal legislature in which arguments have on different occasions been drawn with apparent effect from these phrases in their indefinite meaning.
To these indications might be added, without looking farther, the official report on manufactures by the late Secretary of the Treasury, made on the 5th of December, 1791; and the report of a committee of Congress in January 1797 on the promotion of agriculture. In the first of these it is expressly contended to belong “to the discretion of the national legislature to pronounce upon the objects which concern the general welfare and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce are within the sphere of the national councils, as far as regards an application of money.” The latter report assumes the same latitude of power in the national councils and applies it to the encouragement of agriculture, by means of a society to be established at the seat of government. Although neither of these reports may have received the sanction of a law carrying it into effect, yet, on the other hand, the extraordinary doctrine contained in both has passed without the slightest positive mark of disapprobation from the authority to which it was addressed.
Now, whether the phrases in question be construed to authorize every measure relating to the common defense and general welfare, as contended by some, or every measure only in which there might be an application of money, as suggested by the caution of others, the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever which may not have some reference to the common defense or the general welfare, nor a power of any magnitude which in its exercise does not involve or admit an application of money. The government therefore which possesses power in either one or other of these extents is a government without the limitations formed by a particular enumeration of powers; and consequently the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power over the “general welfare” by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual states; and leaving to these their jurisdictions in cases to which their separate provisions may be competent. For as the authority of the individual states must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare which might by any possibility be provided for by the general authority. This qualifying construction therefore would have little, if any, tendency to circumscribe the power claimed under the latitude of the terms “general welfare.”
The true and fair construction of this expression, both in the original and existing federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defense and general welfare. In both is subjoined to this authority an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare otherwise than by an application of it to some particular measure conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by, the clause in the Constitution which declares that “no money shall be drawn from the treasury, but in consequence of appropriations by law.” An appropriation of money to the general welfare would be deemed rather a mockery than an observance of this constitutional injunction.
2. Whether the exposition of the general phrases here combated would not, by degrees, consolidate the states into one sovereignty, is a question concerning which the committee can perceive little room for difference of opinion. To consolidate the states into one sovereignty, nothing more can be wanted than to supercede their respective sovereignties in the cases reserved to them by extending the sovereignty of the United States to all cases of the “general welfare,” that is to say, to all cases whatever.
3. That the obvious tendency and inevitable result of a consolidation of the states into one sovereignty would be to transform the republican system of the United States into a monarchy is a point which seems to have been sufficiently decided by the general sentiment of America. In almost every instance of discussion relating to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have been contested. The prospect of such a consolidation has formed the only topic of controversy. It would be unnecessary, therefore, for the committee to dwell long on the reasons which support the position of the General Assembly. It may not be improper however to remark two consequences evidently flowing from an extension of the federal powers to every subject falling within the idea of the “general welfare.”
One consequence must be to enlarge the sphere of discretion allotted to the executive magistrate. Even within the legislative limits properly defined by the Constitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt; and has led to occasional investments of power in the executive which involve perhaps as large a portion of discretion as can be deemed consistent with the nature of the executive trust. In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mold regulations of a general nature so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of executive prerogative materially consists.
The other consequence would be that of an excessive augmentation of the offices, honors, and emoluments depending on the executive will. Add to the present legitimate stock all those of every description which a consolidation of the states would take from them and turn over to the Federal Government, and the patronage of the executive would necessarily be as much swelled in this case as its prerogative would be in the other.
This disproportionate increase of prerogative and patronage must, evidently, either enable the chief magistrate of the union, by quiet means, to secure his reelection from time to time, and finally to regulate the succession as he might please; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt that the public voice itself might call for an hereditary in place of an elective succession. Whichever of these events might follow, the transformation of the republican system of the United States into a monarchy, anticipated by the General Assembly from a consolidation of the states into one sovereignty, would be equally accomplished; and whether it would be into a mixed or an absolute monarchy might depend on too many contingencies to admit of any certain foresight.
The resolution next in order is contained in the following terms:
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “Alien and Sedition Acts,” passed at the last session of Congress; the first of which exercises a power nowhere delegated to the Federal Government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of a free government, as well as the particular organization and positive provisions of the federal constitution; and the other of which acts exercises in like manner a power not delegated by the Constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power which, more than any other, ought to produce universal alarm, because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right… .
All [the] principles of the only preventive justice known to American jurisprudence are violated by the Alien Act. The ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate alone; no oath or affirmation is required; if the suspicion be held reasonable by the President, he may order the suspected alien to depart the territory of the United States without the opportunity of avoiding the sentence by finding pledges for his future good conduct; as the President may limit the time of departure as he pleases, the benefit of the writ of habeas corpus may be suspended with respect to the party, although the Constitution ordains that it shall not be suspended unless when the public safety may require it in case of rebellion or invasion, neither of which existed at the passage of the act: And the party being, under the sentence of the President, either removed from the United States, or being punished by imprisonment or disqualification ever to become a citizen on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him and restored to the benefits of his former situation, although the highest judicial authority should see the most sufficient cause for it… .
One argument offered in justification of this power exercised over aliens is that the admission of them into the country being of favor not of right, the favor is at all times revocable… .
But it cannot be a true inference that because the admission of an alien is a favor, the favor may be revoked at pleasure. A grant of land to an individual may be of favor not of right; but the moment the grant is made, the favor becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be a favor, but the pardon is not, on that account, the less irrevocable. To admit an alien to naturalization is as much a favor as to admit him to reside in the country, yet it cannot be pretended that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised.
Again it is said that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.
To this reasoning also, it might be answered that, although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens without regard to that particular consideration.
But a more direct reply is that it does not follow, because aliens are not parties to the Constitution as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe on one hand a temporary obedience, they are entitled in return to their protection and advantage… .
The second object against which the resolution protests is the Sedition Act.
Of this act it is affirmed: 1. That it exercises in like manner a power not delegated by the Constitution. 2d. That the power, on the contrary, is expressly and positively forbidden by one of the amendments to the Constitution. 3d. That this is a power which more than any other ought to produce universal alarm because it is leveled against that right of freely examining public characters and measures, and of free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.
I. That it exercises a power not delegated by the Constitution.
Here, again, it will be proper to recollect that the Federal Government being composed of powers specifically granted, with a reservation of all others to the states or to the people, the positive authority under which the Sedition Act could be passed must be produced by those who assert its constitutionality. In what part of the Constitution then is this authority to be found?
Several attempts have been made to answer this question, which will be examined in their order. The committee will begin with one which has filled them with equal astonishment and apprehension; and which, they cannot but persuade themselves, must have the same effect on all who will consider it with coolness and impartiality, and with a reverence for our Constitution in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the Sedition Act: “that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, “makes a part of the law of these states, in their united and national capacity.” …
Prior to the Revolution, it is certain that the common law under different limitations made a part of the colonial codes. But whether it be understood that the original colonists brought the law with them or made it their law by adoption, it is equally certain that it was the separate law of each colony within its respective limits, and was unknown to them as a law pervading and operating through the whole, as one society.
It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no common legislature by which a common will could be expressed in the form of a law; nor any common magistracy by which such a law could be carried into practice. The will of each colony alone and separately had its organs for these purposes.
This stage of our political history furnishes no foothold for the patrons of this new doctrine.
Did, then, the principle or operation of the great event which made the colonies independent states imply or introduce the common law as a law of the union?
The fundamental principle of the revolution was that the colonies were co-ordinate members with each other, and with Great-Britain, of an Empire united by a common Executive Sovereign, but not united by any common Legislative Sovereign. The legislative power was maintained to be as complete in each American Parliament as in the British Parliament. And the royal prerogative was in force in each colony by virtue of its acknowledging the King for its executive magistrate, as it was in Great-Britain by virtue of a like acknowledgment there. A denial of these principles by Great-Britain, and the assertion of them by America, produced the revolution… .
Such being the ground of our revolution, no support nor color can be drawn from it for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the revolution.
The Articles of Confederation are the next source of information on this subject.
In the interval between the commencement of the revolution and the final ratification of these Articles, the nature and extent of the union was determined by the circumstances of the crisis rather than by any accurate delineation of the general authority. It will not be alledged that the “common law” could have had any legitimate birth as a law of the United States during that state of things. If it came as such into existence at all, the charter of confederation must have been its parent.
Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syllable that can be tortured into a countenance of the idea that the parties to it were with respect to the objects of the common law to form one community. No such law is named or implied, or alluded to, as being in force, or as brought into force by that compact. No provision is made by which such a law could be carried into operation; whilst on the other hand, every such inference or pretext is absolutely precluded by article 2d, which declares “that each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” …
Is this exclusion revoked, and the common law introduced as a national law, by the present Constitution of the United States? This is the final question to be examined.
It is readily admitted that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far, also, as such other parts may be adopted as necessary and proper for carrying into execution the powers expressly delegated. But the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.
The only part of the Constitution which seems to have been relied on in this case is the 2d sect. of art. III. “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority.”
It has been asked what cases distinct from those arising under the laws and treaties of the United States can arise under the Constitution other than those arising under the common law; and it is inferred that the common law is accordingly adopted or recognized by the Constitution.
Never perhaps was so broad a construction applied to a text so clearly unsusceptible of it. … Rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere pleonasm or inadvertence. But it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy justified, by two descriptions of cases to which the judicial authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions comprehends the cases growing out of the restrictions on the legislative power of the states. For example, it is provided that “no state shall emit bills of credit,” or “make any thing but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same state be the consequence, this would be a case arising under the Constitution before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the Constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States… .
To this explanation of the text, the following observations may be added.
The expression, cases in law and equity, is manifestly confined to cases of a civil nature; and would exclude cases of criminal jurisdiction. Criminal cases in law and equity would be a language unknown to the law… .
It is further to be considered, that even if this part of the Constitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the Sedition Act; which is an exercise of legislative, and not of judicial power: and it is the judicial power only of which the extent is defined in this part of the Constitution… .
In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law would afford powerful reasons against it.
Is it to be the common law with or without the British statutes?
If without the statutory amendments, the vices of the code would be insupportable.
If with these amendments, what period is to be fixed for limiting the British authority over our laws?
Is it to be the date of the eldest or the youngest of the colonies?
Or are the dates to be thrown together and a medium deduced?
Or is our independence to be taken for the date?
Is, again, regard to be had to the various changes in the common law made by the local codes of America?
Is regard to be had to such changes, subsequent, as well as prior, to the establishment of the Constitution?
Is regard to be had to future as well as past changes?
Is law to be different in every state, as differently modified by its code; or are the modifications of any particular state to be applied to all?
And on the latter supposition, which among the state codes would form the standard?
Questions of this sort might be multiplied with as much ease as there would be difficulty in answering them.
The consequences flowing from the proposed construction furnish other objections equally conclusive… .
If it be understood that the common law is established by the Constitution, it follows that no part of the law can be altered by the legislature; such of the statutes already passed as may be repugnant thereto would be nullified, particularly the “Sedition Act” itself which boasts of being a melioration of the common law; and the whole code with all its incongruities, barbarisms, and bloody maxims would be inviolably saddled on the good people of the United States.
Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration by the authority of Congress, it then follows that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of legislation: For to every such object does some branch or other of the common law extend. The authority of Congress would therefore be no longer under the limitations marked out in the Constitution. They would be authorized to legislate in all cases whatsoever… .
The consequence of admitting the common law as the law of the United States on the authority of the individual states is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the constitutions and laws of the states, the admission of it would overwhelm the residuary sovereignty of the states and by one constructive operation new model the whole political fabric of the country.
From the review thus taken of the situation of the American colonies prior to their independence; of the effect of this event on their situation; of the nature and import of the Articles of Confederation; of the true meaning of the passage in the existing Constitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrine; and of its vast consequences in extending the powers of the Federal Government and in superceding the authorities of the state governments; the committee feel the utmost confidence in concluding that the common law never was, nor by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn by all candid and accurate inquirers into the subject. It is indeed distressing to reflect that it ever should have been made a question whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not in the opinion of the committee be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them.
The argument then drawn from the common law, on the ground of its being adopted or recognized by the Constitution, being inapplicable to the Sedition Act, the committee will proceed to examine the other arguments which have been founded on the Constitution.
They will waste but little time on the attempt to cover the act by the preamble to the Constitution; it being contrary to every acknowledged rule of construction to set up this part of an instrument in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect of rendering nugatory or improper every part of the Constitution which succeeds the preamble.
The paragraph in art. I, sect. 8, which contains the power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare, having been already examined, will also require no particular attention in this place. It will have been seen that in its fair and consistent meaning, it cannot enlarge the enumerated powers vested in Congress.
The part of the Constitution which seems most to be recurred to in defense of the “Sedition Act,” is the last clause of the above section, empowering Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
The plain import of this clause is that Congress shall have all the incidental or instrumental powers necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States more collectively or in the several departments or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted are included in the grant.
Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not, Congress cannot exercise it.
Let the question be asked, then, whether the power over the press exercised in the “Sedition Act” be found among the powers expressly vested in the Congress? This is not pretended.
Is there any express power for executing which it is a necessary and proper power?
The power which has been selected, as least remote, in answer to this question, is that of “suppressing insurrections”; which is said to imply a power to prevent insurrections, by punishing whatever may lead or tend to them. But it surely cannot, with the least plausibility, be said that a regulation of the press and a punishment of libels are exercises of a power to suppress insurrections. The most that could be said would be that the punishment of libels, if it had the tendency ascribed to it, might prevent the occasion of passing or executing laws necessary and proper for the suppression of insurrections.
Has the Federal Government no power, then, to prevent as well as to punish resistance to the laws?
They have the power which the Constitution deemed most proper in their hands for the purpose. The Congress has power, before it happens, to pass laws for punishing it; and the Executive and Judiciary have power to enforce those laws when it does happen.
It must be recollected by many, and could be shown to the satisfaction of all, that the construction here put on the terms “necessary and proper” is precisely the construction which prevailed during the discussions and ratifications of the Constitution. It may be added, and cannot too often be repeated, that it is a construction absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers only; not of the general and indefinite powers vested in ordinary governments. For if the power to suppress insurrections includes a power to punish libels; or if the power to punish includes a power to prevent, by all means that may have that tendency; such is the relation and influence among the most remote subjects of legislation that a power over a very few would carry with it a power over all. And it must be wholly immaterial whether unlimited powers be exercised under the name of unlimited powers or be exercised under the name of unlimited means of carrying into execution limited powers.
This branch of the subject will be closed with a reflection which must have weight with all; but more especially with those who place peculiar reliance on the judicial exposition of the Constitution as the bulwark provided against undue extensions of the legislative power. If it be understood that the powers implied in the specified powers have an immediate and appropriate relation to them, as means necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose will be of a nature sufficiently precise and determinate for judicial cognizance and control. If, on the other hand, Congress are not limited in the choice of means by any such appropriate relation of them to the specified powers; but may employ all such means as they may deem fitted to prevent as well as to punish crimes subjected to their authority; such as may have a tendency only to promote an object for which they are authorized to provide; every one must perceive that questions relating to means of this sort must be questions of mere policy and expediency; on which legislative discretion alone can decide, and from which the judicial interposition and control are completely excluded.
II. The next point which the resolution requires to be proved is that the power over the press exercised by the Sedition Act is positively forbidden by one of the amendments to the Constitution.
The amendment stands in these words—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In the attempts to vindicate the “Sedition Act” it has been contended, 1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. That the article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allowed to it by the common law.
Although it will be shown, in examining the second of these positions, that the amendment is a denial to Congress of all power over the press; it may not be useless to make the following observations on the first of them… .
The freedom of the press under the common law is, in the defenses of the Sedition Act, made to consist in an exemption from all previous restraint on printed publications, by persons authorized to inspect and prohibit them. It appears to the committee that this idea of the freedom of the press can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say that no law should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.
The essential difference between the British government and the American constitutions will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights of the people is understood to be confined to the executive magistrate. The representatives of the people in the legislature are not only exempt themselves from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle that the parliament is unlimited in its power; or in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, etc. are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king is all the freedom that can be secured to it.
In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws.
The state of the press, therefore, under the common law, cannot in this point of view, be the standard of its freedom in the United States.
But there is another view under which it may be necessary to consider this subject. It may be alledged that although the security for the freedom of the press be different in Great Britain and in this country; being a legal security only in the former, and a constitutional security in the latter; and although there may be a further difference in an extension of the freedom of the press, here, beyond an exemption from previous restraint to an exemption from subsequent penalties also; yet that the actual legal freedom of the press, under the common law, must determine the degree of freedom which is meant by the terms and which is constitutionally secured against both previous and subsequent restraints.
The committee are not unaware of the difficulty of all general questions which may turn on the proper boundary between the liberty and licentiousness of the press. They will leave it therefore for consideration only how far the difference between the nature of the British government and the nature of the American governments, and the practice under the latter, may show the degree of rigor in the former to be inapplicable to, and not obligatory in, the latter.
The nature of governments elective, limited, and responsible in all their branches may well be supposed to require a greater freedom of animadversion than might be tolerated by the genius of such a government as that of Great Britain. In the latter, it is a maxim that the king, a hereditary, not a responsible magistrate, can do no wrong; and that the legislature, which in two-thirds of its composition is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible. Is it not natural and necessary under such different circumstances that a different degree of freedom in the use of the press should be contemplated?
Is not such an inference favored by what is observable in Great Britain itself? Notwithstanding the general doctrine of the common law on the subject of the press, and the occasional punishment of those who use it with a freedom offensive to the government; it is well known that with respect to the responsible members of the government, where the reasons operating here become applicable there; the freedom exercised by the press, and protected by the public opinion, far exceeds the limits prescribed by the ordinary rules of law. The ministry, who are responsible to impeachment, are at all times animadverted on by the press, with peculiar freedom; and during the elections for the House of Commons, the other responsible part of the government, the press is employed with as little reserve towards the candidates.
The practice in America must be entitled to much more respect. In every state, probably, in the union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this footing it yet stands. And it will not be a breach either of truth or of candor to say that no persons or presses are in the habit of more unrestrained animadversions on the proceedings and functionaries of the state governments than the persons and presses most zealous in vindicating the act of Congress for punishing similar animadversions on the government of the United States.
The last remark will not be understood as claiming for the state governments an immunity greater than they have heretofore enjoyed. Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the states that it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigor of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, checkered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source, the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system into a shape so auspicious to their happiness. Had “Sedition Acts,” forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press; might not the United States have been languishing at this day under the infirmities of a sick confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke?
To these observations one fact will be added which demonstrates that the common law cannot be admitted as the universal expositor of American terms which may be the same with those contained in that law. The freedom of conscience and of religion are found in the same instruments which assert the freedom of the press. It will never be admitted that the meaning of the former, in the common law of England, is to limit their meaning in the United States.
Whatever weight may be allowed to these considerations, the committee do not, however, by any means, intend to rest the question on them. They contend that the article of amendment, instead of supposing in Congress a power that might be exercised over the press, provided its freedom be not abridged, was meant as a positive denial to Congress of any power whatever on the subject.
To demonstrate that this was the true object of the article, it will be sufficient to recall the circumstances which led to it, and to refer to the explanation accompanying the article.
When the Constitution was under the discussions which preceded its ratification, it is well known that great apprehensions were expressed by many lest the omission of some positive exception from the powers delegated of certain rights, and of the freedom of the press particularly, might expose them to the danger of being drawn by construction within some of the powers vested in Congress; more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution; that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution and such as were fairly incident to them; that the power over the rights in question, and particularly over the press, was neither among the enumerated powers nor incident to any of them; and consequently that an exercise of any such power would be a manifest usurpation. It is painful to remark how much the arguments now employed in behalf of the Sedition Act are at variance with the reasoning which then justified the Constitution, and invited its ratification.
From this posture of the subject resulted the interesting question in so many of the conventions whether the doubts and dangers ascribed to the Constitution should be removed by any amendments previous to the ratification, or be postponed, in confidence that as far as they might be proper, they would be introduced in the form provided by the Constitution. The latter course was adopted; and in most of the states, the ratifications were followed by propositions and instructions for rendering the Constitution more explicit and more safe to the rights not meant to be delegated by it. Among those rights, the freedom of the press, in most instances, is particularly and emphatically mentioned. The firm and very pointed manner in which it is asserted in the proceedings of the convention of this state will be hereafter seen.
In pursuance of the wishes thus expressed, the first Congress that assembled under the Constitution proposed certain amendments which have since, by the necessary ratifications, been made a part of it; among which amendments is the article containing, among other prohibitions on the Congress, an express declaration that they should make no law abridging the freedom of the press.
Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution as it originally stood; and that the amendment was intended as a positive and absolute reservation of it.
But the evidence is still stronger. The proposition of amendments made by Congress is introduced in the following terms: “The Conventions of a number of the states having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institution.”
Here is the most satisfactory and authentic proof that the several amendments proposed were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the states, and as extending the ground of public confidence in the government.
Under any other construction of the amendment relating to the press than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the states, nor be calculated to extend the ground of public confidence in the government.
Nay more; the construction employed to justify the “Sedition Act” would exhibit a phenomenon without a parallel in the political world. It would exhibit a number of respectable states as denying first that any power over the press was delegated by the Constitution; as proposing next, that an amendment to it should explicitly declare that no such power was delegated; and finally, as concurring in an amendment actually recognizing or delegating such a power.
Is then the Federal Government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it?
The Constitution alone can answer this question. If no such power be expressly delegated, and it be not both necessary and proper to carry into execution an express power; above all, if it be expressly forbidden by a declaratory amendment to the Constitution, the answer must be that the Federal Government is destitute of all such authority.
And might it not be asked in turn, whether it is not more probable, under all the circumstances which have been reviewed, that the authority should be withheld by the Constitution than that it should be left to a vague and violent construction: whilst so much pains were bestowed in enumerating other powers, and so many less important powers are included in the enumeration.
Might it not be likewise asked, whether the anxious circumspection which dictated so many peculiar limitations on the general authority would be unlikely to exempt the press altogether from that authority? The peculiar magnitude of some of the powers necessarily committed to the Federal Government; the peculiar duration required for the functions of some of its departments; the peculiar distance of the seat of its proceedings from the great body of its constituents; and the peculiar difficulty of circulating an adequate knowledge of them through any other channel; will not these considerations, some or other of which produced other exceptions from the powers of ordinary governments, all together, account for the policy of binding the hand of the Federal Government from touching the channel which alone can give efficacy to its responsibility to its constituents; and of leaving those who administer it to a remedy for injured reputations under the same laws and in the same tribunals which protect their lives, their liberties, and their properties.
But the question does not turn either on the wisdom of the Constitution or on the policy which gave rise to its particular organization. It turns on the actual meaning of the instrument; by which it has appeared that a power over the press is clearly excluded from the number of powers delegated to the Federal Government.
III. And in the opinion of the committee well may it be said, as the resolution concludes with saying, that the unconstitutional power exercised over the press by the “Sedition Act” ought “more than any other, to produce universal alarm; because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
Without scrutinizing minutely into all the provisions of the “Sedition Act” it will be sufficient to cite so much of section 2. as follows: “And be it further enacted, that 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, or either house of the Congress of the United States, or the President of the United States, with an intent to defame the said government, or either house of the said Congress, or the President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either, or any of them, the hatred of the good people of the United States, etc. then such person being thereof convicted before any court of the United States, having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”
On this part of the act the following observations present themselves.
1. The Constitution supposes that the President, the Congress, and each of its houses, may not discharge their trusts, either from defect of judgment or other causes. Hence, they are all made responsible to their constituents at the returning periods of election; and the President, who is singly entrusted with very great powers, is, as a further guard, subjected to an intermediate impeachment.
2. Should it happen, as the Constitution supposes it may happen, that either of these branches of the government may not have duly discharged its trust; it is natural and proper that, according to the cause and degree of their faults, they should be brought into contempt or disrepute, and incur the hatred of the people.
3. Whether it has, in any case, happened that the proceedings of either or all of those branches evinces such a violation of duty as to justify a contempt, a disrepute or hatred among the people, can only be determined by a free examination thereof, and a free communication among the people thereon.
4. Whenever it may have actually happened that proceedings of this sort are chargeable on all or either of the branches of the government, it is the duty as well as right of intelligent and faithful citizens to discuss and promulge them freely, as well to control them by the censorship of the public opinion as to promote a remedy according to the rules of the Constitution. And it cannot be avoided that those who are to apply the remedy must feel, in some degree, a contempt or hatred against the transgressing party.
5. As the act was passed on July 14, 1798, and is to be in force until March 3, 1801, it was of course that during its continuance, two elections of the entire House of Representatives, an election of a part of the Senate, and an election of a President were to take place.
6. That consequently, during all these elections, intended by the Constitution to preserve the purity or to purge the faults of the administration, the great remedial rights of the people were to be exercised, and the responsibility of their public agents to be screened, under the penalties of this act.
May it not be asked of every intelligent friend to the liberties of his country whether, the power exercised in such an act as this ought not to produce great and universal alarm? Whether a rigid execution of such an act, in time past, would not have repressed that information and communication among the people which is indispensable to the just exercise of their electoral rights? And whether such an act, if made perpetual and enforced with rigor, would not, in time to come, either destroy our free system of government or prepare a convulsion that might prove equally fatal to it.
In answer to such questions, it has been pleaded that the writings and publications forbidden by the act are those only which are false and malicious, and intended to defame; and merit is claimed for the privilege allowed to authors to justify, by proving the truth of their publications, and for the limitations to which the sentence of fine and imprisonment is subjected.
To those who concurred in the act under the extraordinary belief that the option lay between the passing of such an act and leaving in force the common law of libels, which punishes truth equally with falsehood, and submits the fine and imprisonment to the indefinite discretion of the court, the merit of good intentions ought surely not to be refused. A like merit may perhaps be due for the discontinuance of the corporal punishment which the common law also leaves to the discretion of the court. This merit of intention, however, would have been greater, if the several mitigations had not been limited to so short a period; and the apparent inconsistency would have been avoided between justifying the act at one time by contrasting it with the rigors of the common law otherwise in force; and at another time by appealing to the nature of the crisis as requiring the temporary rigor exerted by the act.
But whatever may have been the meritorious intentions of all or any who contributed to the Sedition Act; a very few reflections will prove that its baneful tendency is little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.
In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a prosecution from the government with the full and formal proof necessary in a court of law.
But in the next place, it must be obvious to the plainest minds that opinions, and inferences, and conjectural observations are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences and conjectural observations cannot be subjects of that kind of proof which appertains to facts before a court of law.
Again, it is no less obvious that the intent to defame or bring into contempt or disrepute or hatred, which is made a condition of the offense created by the act, cannot prevent its pernicious influence on the freedom of the press. For omitting the inquiry how far the malice of the intent is an inference of the law from the mere publication, it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt without striking at the right of freely discussing public characters and measures: because those who engage in such discussions must expect and intend to excite these unfavorable sentiments so far as they may be thought to be deserved. To prohibit therefore the intent to excite those unfavorable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them, is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government if they should at any time deserve the contempt or hatred of the people against being exposed to it by free animadversions on their characters and conduct. Nor can there be a doubt, if those in public trust be shielded by penal laws from such strictures of the press as may expose them to contempt or disrepute or hatred, where they may deserve it, that in exact proportion as they may deserve to be exposed will be the certainty and criminality of the intent to expose them, and the vigilance of prosecuting and punishing it; nor a doubt that a government thus entrenched in penal statutes against the just and natural effects of a culpable administration will easily evade the responsibility which is essential to a faithful discharge of its duty.
Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen that a number of important elections will take place whilst the act is in force; although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the government, to be competitions between those who are and those who are not members of the government; what will be the situations of the competitors? Not equal; because the characters of the former will be covered by the “Sedition Act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors whose pretensions they are not permitted by the act equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it.
It is with justice, therefore, that the General Assembly hath affirmed in the resolution as well that the right of freely examining public characters and measures, and of free communication thereon, is the only effectual guardian of every other right; as that this particular right is leveled at by the power exercised in the “Sedition Act.”…
The act of ratification by Virginia … stands in the ensuing form.
We, the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon; DO, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them and at their will. That therefore, no right of any denomination can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and, that among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained or modified by any authority of the United States.
Here is an express and solemn declaration by the convention of the state that they ratified the Constitution in the sense that no right of any denomination can be cancelled, abridged, restrained or modified by the government of the United States or any part of it, except in those instances in which power is given by the Constitution; and in the sense particularly, “that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained or modified, by any authority of the United States.”
Words could not well express in a fuller or more forcible manner the understanding of the convention that the liberty of conscience and the freedom of the press were equally and completely exempted from all authority whatever of the United States.
Under an anxiety to guard more effectually these rights against every possible danger, the convention, after ratifying the Constitution, proceeded to prefix to certain amendments proposed by them a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of other states, and Congress, as has been seen, having in consequence thereof, and with a view to extend the ground of public confidence, proposed among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made them a part of the Constitution; it will remain with a candid public to decide whether it would not mark an inconsistency and degeneracy if an indifference were now shown to a palpable violation of one of those rights, the freedom of the press; and to a precedent therein, which may be fatal to the other, the free exercise of religion… .
It has been said that it belongs to the judiciary of the United States, and not to the state legislatures, to declare the meaning of the Federal Constitution.
But a declaration that proceedings of the Federal Government are not warranted by the Constitution is a novelty neither among the citizens nor among the legislatures of the states; nor are the citizens or the legislature of Virginia singular in the example of it.
Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government; or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations in such cases are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary: the latter enforces the general will whilst that will and that opinion continue unchanged.
And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states and inviting their concurrence in a like declaration? What is allowable for one must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight that cannot be denied to it from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches.
The legislatures of the states have a right, also, to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states, or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right, also, to enter into agreements or compacts with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.
It is lastly to be seen, whether the confidence expressed by the resolution that the necessary and proper measures would be taken by the other states for cooperating with Virginia in maintaining the rights reserved to the states, or to the people, be in any degree liable to the objections which have been raised against it.
If it be liable to objection, it must be because either the object or the means are objectionable.
The object being to maintain what the Constitution has ordained is in itself a laudable object.
The means are expressed in the terms “the necessary and proper measures.” A proper object was to be pursued, by means both necessary and proper.
To find an objection, then, it must be shown that some meaning was annexed to these general terms which was not proper; and for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.
In the example given by the state of declaring the Alien and Sedition Acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported too by the numerous applications flowing immediately from the people, it can scarcely be doubted that these simple means would have been as sufficient as they are unexceptionable.
It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective senators in Congress their wish that two thirds thereof would propose an explanatory amendment to the Constitution; or two thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.
These several means, though not equally eligible in themselves, nor probably to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.
These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten that among the arguments addressed to those who apprehended danger to liberty from the establishment of the general government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments between the people and that government, to the vigilance with which they would descry the first symptoms of usurpation, and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one, then, to recommend the establishment of the constitution; it must be a proper one now, to assist in its interpretation.
The only part of the two concluding resolutions that remains to be noticed is the repetition in the first of that warm affection to the union and its members and of that scrupulous fidelity to the Constitution which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those who have listened to the suggestion can only be left to their own recollection of the part which this state has borne in the establishment of our national independence; in the establishment of our national constitution; and in maintaining under it the authority and laws of the union, without a single exception of internal resistance or commotion. By recurring to these facts, they will be able to convince themselves that the representatives of the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism than their own consciousness and the justice of an enlightened public; who will perceive in the resolutions themselves the strongest evidence of attachment both to the Constitution and to the union, since it is only by maintaining the different governments and departments within their respective limits that the blessings of either can be perpetuated. The extensive view of the subject thus taken by the committee has led them to report to the house, as the result of the whole, the following resolution.
Resolved, That the General Assembly, having carefully and respectfully attended to the proceedings of a number of the states, in answer to their resolutions of December 21, 1798, and having accurately and fully re-examined and reconsidered the latter, find it to be their indispensable duty to adhere to the same, as founded in truth, as consonant with the Constitution, and as conducive to its preservation; and more especially to be their duty, to renew, as they do hereby renew, their protest against “the Alien and Sedition Acts,” as palpable and alarming infractions of the Constitution.
The Jeffersonian Ascendancy: Domestic Policy, 1801–1808
Thomas Jefferson defeated John Adams in the presidential election of 1800, 73 electoral votes to 65. Indeed, in an impressive display of party unity (and an instructive revelation of a notable flaw in the Constitution as originally written), every Republican elector in the country cast one vote for Jefferson and one for the party’s vice-presidential candidate, Aaron Burr, whose triumph over Hamilton in the legislative elections in New York City had carried that state, and the election, for the Jeffersonians. The electoral tie threw the final selection of the president into the lame-duck House of Representatives, where the Federalists controlled enough states to prevent a decision. With some of them hoping that they could get better terms from Burr than from Jefferson, perhaps even that a deadlock would compel a choice of a president in another way, the defeated party stubbornly blocked a decision through 35 ballots. Burr, however, declined to play this game (though he also damaged himself irreparably with the Virginians by doing nothing to rule himself completely out); and on the thirty-sixth ballot, James A. Bayard, the lone representative from Delaware, brought the dangerous impasse to an end.
Adams’s defeat in 1800 was far from overwhelming. The people had about as indirect a voice as they have ever had in a presidential election. In ten of the sixteen states, the legislatures kept the choice of the presidential electors in their own hands. The switch of a few hundred votes in the assembly elections in New York or of fewer than that in the legislature of South Carolina would have reversed the outcome. Adams had broken sharply with the Hamiltonian wing of his party and moved decisively toward peace with France. Although the split within his party probably contributed to his defeat, it may also have strengthened his popular appeal.
But if the president was not, by any means, decisively repudiated at the polls, his party certainly was. The Federalists lost more than twenty seats in the House of Representatives and, for the first time, control of the Senate as well. Having captured a House majority of 65 to 41 for the incoming Seventh Congress, the Republicans were well positioned to insist upon a new national course. And months before the Seventh Congress met, Jefferson established guidelines that his own and Madison’s administrations would adhere to through the coming sixteen years.