If, therefore, the Constitution contained no express provision whatever prohibiting Congress from passing any law abridging the freedom of speech or of the press, I think I have shown conclusively that the power to pass this bill could not be inferred from any of its express grants of power. But the Constitution is not silent on the subject. Before its adoption by the States, it was dreaded by the jealous patriots of the day, that the Federal Government might usurp the liberties of the people by attacking the liberty of speech and of the press. They, therefore, insisted upon the insertion of an express provision, as an amendment, which, in all time to come, would prevent Congress from interfering with these inestimable rights. The amendment to which I have often referred was adopted, and these rights were expressly excepted from the powers of the Federal Government. And yet, in the very face of this express negative of federal power, we find the Senator from Kentucky coming forward with his bill declaring direct war against any exercise of the freedom of speech and of the press by those citizens of the States who happen to be office holders under the General Government.
But, says the Senator from Virginia, Congress possess, and have exercised, the unquestionable power of creating offices under the Constitution; and they may, therefore, annex to the holding of those offices such a condition as that prescribed by the bill, or rather the amendment of the Senator from Kentucky. Now, sir, what is this but to say that Congress may declare that any citizen of Pennsylvania, who accepts a federal office, shall take it upon condition that it shall be forfeited the moment he exercises the dearest political right guarantied to him and every other citizen, by the Constitution of the United States? Can Congress impose any such condition upon an office? If they can, they can repeal the most solemn provision of the Constitution, and render it a dead letter in regard to every person in the employment of the General Government. All mankind may then speak and publish what they please, except those individuals who have been selected, I hope, generally, for their integrity and ability, to execute the important public trusts of the country.
The Senator from Kentucky has adduced several precedents to prove that similar powers have been already exercised by Congress in other cases. Let us examine them for a moment. Congress, says he, has declared that an Indian agent who shall himself trade with the Indians, shall be punished for this act. But why? It is because this agent is vested with the power of granting to our citizens licenses to trade with the Indians, and thus to take care that they shall not be imposed upon and cheated. To allow him, therefore, to trade with them himself, would be to make him a judge in his own cause, and to withdraw from them that protection which the law intended. Besides, Congress have received from the States, by the Constitution, the power to regulate commerce with the Indian tribes. The whole subject is thus placed under their control. What, then, is this precedent worth? Is not the trading of an Indian agent with the Indians an express and palpable violation of a duty necessarily involved in his office? Can any thing be clearer than the power and the duty of Congress to punish him for this offence? But what interference can there be between the performance of the duties required by law from a postmaster, or from any other of the proscribed officers, and his expression of an opinion to his neighbor, either for or against any candidate for public office? If the postmaster, for example, performs his whole official duty, if he receives and delivers the letters entrusted to his care, and regularly settles his accounts with the department, what human power can arbitrarily place a gag in his mouth, and declare that he shall be punished for exercising the freedom of speech and of the press, upon the pretext that the exercise of these rights of a freeman are inconsistent with the duties of his office? You might just as well punish him or deprive him of his office for speaking or writing on natural philosophy, or mathematics, or any other scientific subject. You would have the same power to violate that clause in the Constitution conferring upon every man the free exercise of religion, and punish him for expressing his opinion on religious subjects, for attending prayer meetings or bible societies, or for endeavoring to persuade or dissuade any member of the religious society to which he belongs in relation to the choice of its pastor. The principle is precisely the same in both cases. Your power hath this extent, no more. You can punish the officer for neglecting or for violating the duties which appropriately belong to his office. You can not repeal the Constitution by declaring it to be an official duty that he shall abandon the constitutional right of speaking his thoughts upon any subject whatsoever, whether religious, scientific, or political. In other words, you have no right to declare that he shall become a slave when he becomes an officer.
A similar answer, if it were necessary, might be given to the Senator’s other precedents. Officers of the customs are prohibited from owning any vessel or cargo under a pecuniary penalty. And why? Because they themselves are to direct and superintend the entry of vessels and cargoes belonging to other persons and the collection of duties; and to allow them to transact this business for themselves, would be to make them judges in their own cause. It would be an evident violation of the duty naturally attached to their office. But will any one contend that their constitutional freedom of speech, in regard to candidates for office, is incompatible with the proper entry or unloading of vessels engaged either in foreign commerce or the coasting trade?
So the register of a land office is prohibited from entering lands in his own name, or, in other words, from selling lands to himself.
Such are the precedents which the Senator has cited to justify himself in depriving the officers embraced by his bill of the right of freedom of speech and of the press.
But I do not mean even to rest the constitutional question here. From the very nature of the Constitution itself, two great political parties must ever exist in this country. You may call them by what names you will, their principles must ever continue to be the same. The one, dreading federal power, will ever be friendly to a strict construction of the powers delegated to the Federal Government and to State rights. The other equally dreading federal weakness, will ever advocate such a liberal construction of the Constitution as will confer upon the General Government as much power as possible, consistently with a free interpretation of the terms of the instrument. The one party is alarmed at the danger of consolidation; the other at that of disunion. In the days of the elder Adams the party friendly to a liberal construction of the Constitution got into power. And what did they do? Among other things, in the very face of that clause of the Constitution which prohibited Congress from passing any law abridging the freedom of speech or of the press, they passed the sedition law. What were its provisions? It punished false, scandalous, and malicious libels against the Government of the United States, either House of Congress, or the President, by a fine not exceeding two thousand dollars and imprisonment not exceeding two years.
At the present day, it would be useless to waste the time of the Senate in proving that this law was a violation of the Constitution. It is now admitted that Congress, in passing it, had transcended their powers. If any principle has been established beyond a doubt by the almost unanimous opinion of the people of the United States, it is, that the sedition law was unconstitutional. Such is the strong and universal feeling against it, that if it could now be revived, the authors would probably meet a similar fate with those deluded and desperate men in France who have themselves lately fallen victims upon the same altar on which they had determined to sacrifice the liberty of the press.
The popular odium which followed this law was not so much excited by its particular provisions, as by the fact, that any law upon the subject was a violation of the Constitution, and would establish a precedent for giving such a construction to it as would swallow up the rights of the States and of their people in the gulf of federal power.
The Constitution had declared that “Congress shall pass no law abridging the freedom of speech or of the press.” Its framers well knew that, under the laws of each of the States composing this Union, libels were punishable. They, therefore, left the character of all officers created under the Constitution and laws of the United States to be protected by the laws of the several States. They were afraid to give this Government any authority over the subject of libels, lest its colossal power might be wielded against the liberty of the press. Congress were, therefore, prohibited from passing any law upon the subject, whether good or bad. It was not merely because the law was unjust in itself, though it was bad enough, Heaven knows, that the indignant Republicans of that day rose against it; but it was because it violated the Constitution. It expired by its own limitation in March, 1801; but not until it had utterly prostrated the political party which gave it birth.