Congress Expands Its Powers

When George Washington retired from the Presidency in 1797, his Farewell Address to his fellow citizens reveals plainly enough that he was not over confident that our written limited Constitution would be adequate to restrain the ambition of public men, unless the citizens themselves were vigilant, and, as if foreseeing that it would be particularly difficult to hold Congress within its constitutional sphere, he said:

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change in usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

John Adams was hardly inaugurated before Congress enacted two penal measures of the most tyrannous character, not only without constitutional authority but in the teeth of specific inhibitions in our Bill of Rights. These were the Alien law and the Sedition law of 1798. Under the former the President was empowered to banish any alien, without accusation or trial, in his own good pleasure; and under the latter act, to “write, print, utter or publish, or cause to be written, printed, uttered or published”, anything with intent to defame the government, or either House of Congress or the President, was made punishable by a fine not exceeding $2,000 and by imprisonment not exceeding two years. The first amendment in our Bill of Rights declares that Congress shall have no power to pass any law “abridging the freedom of speech or of the press”.

When Jefferson came into office in 1801 he ordered the release of all persons in prison or under prosecution for violation of the Sedition law, declaring “that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.” Its permanent evil, as a precedent, reappeared, however, in the Espionage Acts of 1917 and 1918, with much severer penalties for criticism of the government.

In those early years up to the middle of last century, Congressional usurpation manifests itself mainly in the passage of acts appropriating money or allocating public lands to the States, for what was called “internal improvements” — the building of roads, canals and harbors, the deepening of river channels, and grants in aid of education in the States. Jefferson, Madison, Monroe, Jackson, Pierce and Buchanan uniformly opposed this legislation as beyond the legislative grants of power, but Congress wore them down and ultimately found executive approval, not only for the exercise of these powers but of a host of others, progressively reaching into the reserved field of the States.

To the mass of citizens this contest was more or less academic; it did not touch them, because the federal government was forced to rely for its revenue upon duties and excises, which the people did not feel, refraining from imposing direct taxes by the necessary rule of apportionment, which the people would unquestionably feel and resent, if unnecessarily imposed.

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