Adams, Sedition, Commerce

Sanford Levinson SLevinson at
Sun Nov 6 13:53:18 PST 2005

There is a fascinating debate on the constitutional basis of the alien act, which a number of Jeffersonians indeed argued was beyond any enumerated power.  The response, by the Federalists, was that it was an "inherent power" attached to sovereignty, an argument accepted almost 100 years later in the Chinese Exclusio Cases. In our casebook, we present both the congressional argument and Field's opinion in The Chinese Exclusion Cases as evidence for the proposition that it is simply untrue that ours is only a "limited government of assigned powers," that the partisans of the Alien Act didn't bother with finding an assigned power.  The Enemy Alien Act was different, since everybody conceded that was covered by the war power.  I don't think that anyone at the time would have found a "commerce clause" argument to be plausible.


From: owner-lawcourts-l at on behalf of Mark Graber
Sent: Sun 11/6/2005 1:27 PM
To: conlawprof at; LawCourts-L at; whoooo26505 at
Subject: Re: Adams, Sedition, Commerce

A major chunk of both the Virginia and Kentucky Resolutions are
dedicated to the lack of federal power issues.

>>> Sean Wilson <whoooo26505 at> 11/06/05 1:54 PM >>>
Hey I wanted to ask a question: Does anyone know why the Alien and
Sedition Act that was passed during the Adams administration was not
challenged in the Courts as being a violation of the commerce clause?
That is, the enumerated powers don't allow for the regulation of speech
(to say nothing of the 1st Amendment). I note this because the
Republicans who were prosecuted under the act, to my knowledge, tried to
defend the trials on the basis of the free speech clause, not the
commerce clause. But why not use the commerce clause? In theory it would
have been better because the Act allowed truth as a defense, making it a
kind of "political defamation crime," which could have allowed it to
escape the protection of the speech clause (back then). But the commerce
clause argument seems to have no such loophole. Congress doesn't have
the power to regulate political defamation.

(You got this one, Calvin?)

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