sion that there are some acts of the press which
Congress ought not to have power to restrain, and that by the amendment
they are prohibited to restrain these acts. Nov, to justify any act of
Congress, they ought to show the boundary between what is prohibited and
what is permitted, and that the act is not within the prohibited class.
The Constitution has fixed no such boundary, therefore they can pretend
to no power over the press, without claiming the right of defining what
is freedom and what is licentiousness, and that would be to claim a
right which would defeat the Constitution; for every Congress would have
the same right, and the freedom of the press would fluctuate according
to the will of the legislature. This is, therefore, only a new mode of
claiming absolute power over the press.

It is said there is a common law which makes part of the law of the
United States, which restrained the press more than the act of Congress
has done, and that therefore there is no abridgment of its freedom. What
this common law is I cannot conceive, nor have I seen anybody who could
explain himself when he was talking of it. It certainly is not a common
law of the United States, acquired, as that of England was, by
immemorial usage. The standing of the Government makes this impossible.
It cannot be a code of laws adopted because they were universally in use
in the States, for the States had no uniform code; and, if they had, it
could hardly become, by implication, part of the code of a Government of
limited powers, from which every thing is expressly retained which is
not given. Is it the law of England, at any particular period, which is
adopted? But the nature of the law of England makes it impossible that
it should have been adopted in the lump into such a Government as this
is, because it was a complete system for the management of all the
affairs of a country. It regulated estates, punished all crimes, and, in
short, went to all things for which laws were necessary. But how was
this law adopted? Was it by the Constitution? If so, it is immutable and
incapable of amendment. In what part of the Constitution is it declared
to be adopted? Was it adopted by the courts? From whom do they derive
their authority? The Constitution, in the clause first cited, relies on
Congress to pass all laws necessary to enable the courts to carry their
powers into execution; it cannot, therefore, have been intended to give
them a power not necessar