Polemics & Exchanges

On Enumerated Powers

My thanks to Stephen B. Presser for his review (“Sacred Texts ’98,” October) of my book Reclaiming the American Revolution.  I certainly appreciate such a distinguished legal historian finding the work to merit his attention.  One issue raised in Professor Presser’s review is the constitutionality of the Sedition Act (which made criticism of the national government a crime).  According to Professor Presser, I err in questioning the legality of the act because of my “uncritical adoption of Madison and Jefferson’s 1798 reading of the First Amendment.”  He argues that “the freedom of the press” in 1798 simply meant no prior restraints on publication.  Because the Sedition Act only punished critics of the national government after publication, Professor Presser finds the act constitutional.

I must respectfully disagree.  The powers of Congress are enumerated in Article I, Section 8, of the Constitution.  I can find no enumerated power that permits the regulation of speech or the press.  The issue of restraint of speech did come up during the ratification debates.  In response to those clamoring for a bill of rights, Alexander Hamilton (in Federalist 84) asked: “For why declare that things shall not be done which there is no power to do? ...

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