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? Why for instance, should it be said that liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
Why indeed? Hence, the common-law definition of the freedom of the press and the language of the First Amendment are irrelevant to the Sedition Act’s constitutionality. Until someone shows me an enumerated power permitting Congress to regulate speech, I will continue to argue that the Federalists’ Sedition Act was unconstitutional.
—William J. Watkins, Jr.
Dr. Presser Replies:
Mr. Watkins and I will have to agree to disagree on this one. I suspect there may have been a few of the framing generation who might have thought Congress could pass no laws regarding seditious libel, and, by 1798, it had become a white-hot political issue. Still, not one sitting U.S. Supreme Court justice questioned the constitutionality of the statute while it lasted, and several of those had been instrumental in the framing and exposition of the Constitution of 1789 as well as the 1789 Judiciary Act, which gave the federal courts jurisdiction over “crimes and offenses” cognizable under the authority of the United States. I find it hard to believe they all got it wrong.
Moreover, Mr. Watkins goes a bit too far when he suggests that the 1798 act “made criticism of the national government a crime”; it singled out only false statements made with improper intent, and it simply tracked the English reforms in Fox’s Libel Act of 1792. It would not have been the prevailing wisdom in the early years of our republic that false, malicious, and scandalous statements should be tolerated, even by the federal government. Article I, Section 8’s “necessary and proper” clause would have been seen to justify legislation on the issue, and, it must be remembered, all but one of the justices believed that the Constitution also implied a common-law of crimes jurisdiction, presumably including the common-law crime of seditious libel. Again, there was an emerging party in 1798 around Jefferson and Madison that construed the First Amendment differently, but I do believe that most people and even most lawyers at the time of the framing of the Constitution would have interpreted the “freedom of the press” protected by the First Amendment to refer only to prior restraints and that seditious libel would have been regarded as outside that protection. As I indicated, though, this is a quibble. Most of Watkins’ analysis is right on target.