But the law does not even confine its operation to cases when a war or invasion should be apprehended. Supposing the alarms on that subject to be completely at an end, still the power remains with the President to remove aliens suspected by him to be concerned in secret machinations against Government. The power delegated by this law is not applicable exclusively to cases where it may be thought necessary in order to carry into effect the power to protect States against an invasion. It is to apply generally and under color of its necessity for executing certain specific powers, it may be exercised in a case where that specific power, on which alone it rests, has itself, nothing on which to operate. Although it may happen that there shall be no necessity to protect States against invasion, it will even then, according to this constructive doctrine, still be lawful to do an act which cannot be constitutional, except on account of its being necessary to protect States against invasion.
In order, therefore, to support the constitutionality of the law, the select committee must suppose, in the first place, that Congress may pass laws, without a certainty of their being necessary for carrying into execution some of the specific powers granted to them; that is to say, that Congress have a right to pass laws which may be unnecessary for that purpose. In the next place, that if a certain law is necessary only for executing a constitutional measure of a temporary nature, that law may constitutionally be executed, although the temporary measure itself should not be executed at all; that is to say, that the incidental power may be exercised for a purpose different than that of executing the original power on which it rests.
The application of that constructive doctrine to the sedition and alien laws justifies a conclusion that, if adopted, it will substitute in that clause of the constitution a supposed usefulness or propriety to the necessity expressed and contemplated by the instrument, and will, in fact, destroy every limitation of the powers of Congress. It will follow that instead of being bound by any positive rule laid down by their charter, the discretion of Congress, a discretion to be governed by suspicions, alarms, popular clamor, private ambition, and by the views of fluctuating factions, will justify any measure they may please to adopt; that, instead of being bound by a constitution, they may claim the omnipotence of a British Parliament; that all the reserved powers of the people or of the States will be swallowed up at their pleasure by that undefined discretion; in a word, that the constitution itself, so far as respects a limitation of powers, is by that doctrine completely annihilated. Even the positive checks, which, in a few instances, prohibit the exercise of certain powers, will not prove a sufficient guard against an inordinate appetite to legislate on some favorite subject.
Thus, in the case of the sedition law, the prohibitory clause, respecting an abridgment of the liberty of the press, is attempted to be construed away by star-chamber definitions, by exotic doctrines, which, if suffered to flourish, will overshadow and smother every plant of American growth; doctrines incompatible with the principles of a Government elective in all its Executive and Legislative branches; of a Government which the people, the sole fountain of power, cannot properly carry into execution, if the sources of information are shut up from them; if a free and full discussion of every public measure is at the will of those who enjoy only a delegated authority, checked and embarrassed by prosecutions for libels, grounded solely on the British system of hereditary prerogative.
And thus, in the case of the alien law, it is said that the temporary prohibition enjoined on Congress, to forbid the importation of persons, must be understood as applying only to slaves; and that a power to remove emigrants may be constitutionally exercised, though that of prohibiting their migration should be unconstitutional.
The evidence of members of the Convention which framed the constitution, has sometimes been offered to prove that that body by persons, meant slaves. But the evidence of those members cannot prove any thing beyond their own individual intention, or, at most, their belief of what might have been the intention of some other members. Nor is, on any possible supposition, the intention of the Convention itself of any importance to decide the true meaning of the constitution. For they were not the legislators who passed and ratified the act, but only the framers who drew the instrument and offered it for consideration. As well might the Judges of the Supreme Court be induced in their decision on a point of law, to abandon the clear construction pointed out by the precise meaning of the words of the statute, on account of the supposed opinion of some one of the members of the committee of this House that had drafted the law, as we be guided by what was, at the time, the meaning of some of the gentlemen who drew the constitution. After a lapse of ten years, it is preposterous to receive parole evidence against a sacred record. Are the people of America to be told, after a lapse of ten years, that the delegation of powers, which they sanctioned under the impression of what on its face appeared to be its meaning, is to receive a contrary construction, bottomed on private meaning, on the unknown opinion of the members of a body whose deliberations were secret? And if, even through mistake, those individuals adopted expressions which conveyed a different meaning from what they intended, is that supposed intention to prevail over the explicit sense of those expressions?
But we are told by the select committee, that "there could not have been the least reason" for confining the restriction to the then existing States, and to a period of twenty years, had the restriction "been intended" to apply to all emigrants in general. Here again, a supposed intention is brought as an argument against the general acceptation of the word "persons." The question is not, whether we are at a loss to find the reasons which dictated a modification of the restriction. Yet, if we were to recur to suppositions, we might as well suppose that the then existing States, which alone formed the constitution, felt interested only for themselves, and not for future non-existing States; and that those States, who were interested in promoting the migration of free persons, were satisfied with the same regulation which satisfied those States who were apprehensive of an interference in the importation of slaves. But the only question is, whether modification is contradictory with the common acceptation of the word "persons," which, it will not be denied, in its natural sense, will apply to free as well as to the other description of individuals? Whether there is any thing absurd or repugnant to common sense, in saying that Congress shall not, for twenty years, prohibit the migration of free persons in the existing States? If there be nothing inconsistent in that provision, the modification of the restriction cannot modify and alter the meaning of the word "persons."
Was there any possibility of doubt on the sense of that word, it might be explained by other parts of the constitution and by other expressions in the clause itself.
The 2d section of the 1st article of the constitution, speaking of the mode of ascertaining the respective numbers of the several States, declares that they shall be determined by adding to "the whole number of free persons" (including those bound to service for a term of years, and excluding Indians not taxed) "three-fifths of all other persons." A sentence in which the word persons is expressly applied first to freemen, and secondly to slaves.
The prohibitory clause itself declares that the migration or importation of such persons as any of the States, &c., shall not be prohibited. The word "migration," as contradistinguished from "importation," clearly implies the free will of the person, and applies exclusively to free persons.