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July 31, 2006


Mark Field

As the Task Force Report notes, constitutional nonenforcement has been occurring since at least the Grant Administration. Indeed, the practice began no later than the Buchanan Administration, if not earlier still—in 1801, President Jefferson ordered the cessation of prosecutions under the Sedition Act, a statute that he viewed as unconstitutional (a judgment that the Supreme Court would not confirm until 163 years later).

This issue came up on Prof. Balkin's blog a few weeks ago and I made a cursory comment that I didn't think Jefferson's dismissal of the Sedition Act case(s) -- were there others pending besides Duane? -- was a good example of non-enforcement. Let me elaborate on that issue here.

As is well-known, the Sedition Act expired by its own terms before Jefferson took office. "[I]t has been long settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute." The General Pinckney, 9 U.S. 281, 3 L.Ed. 101 (1809).

As far as I know, there was no "special provision" in the Sedition Act or elsewhere in 1801 which would have saved the prosection(s). Thus, the dismissal was required in any event and was not an example of refusing to enforce a continuing statute.

Marty Lederman

Mark: Indeed, there was a special provision. The Act expired as TJ took office with respect to conduct undertaken after that day, but it continued to apply to sedition occurring during the Adams Administration. See section 4, 1 Stat. 597, providing that the Act would be "in force" until 03/03/01, but also that "expiration of the Act shall not prevent or defeat a prosecution and punishment of any offense against the law, during the time it shall be in force."

TJ put an end to the pending, still-operative prosecutions. As he put the point to Abigail Adams:
"I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, 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; and that it was as much my duty to arrest its execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image."

See also this, from a letter from TJ to Wilson Nicholas:

Certain it is, that the prosecution had been instituted, and had made considerable progress, without my knowledge, that they were disapproved by me as soon as known, and directed to be discontinued. The attorney did it on the same ground on which I had acted myself in the cases of Duane, Callendar, and others; to wit, that the sedition law was unconstitutional and null, and that my obligation to execute what was law, involved that of not suffering rights secured by valid laws, to be prostrated by what was no law.

And this, in a letter to Gideon Granger: “With respect to the dismission of the prosecutions for sedition in Connecticut, it is well known to have been a tenet of the republican portion of our fellow citizens, that the sedition law was contrary to the constitution and therefore void. On this ground I considered it as a nullity wherever I met it in the course of my duties; and on this ground I directed nolle prosequis in all the prosecutions which had been instituted under it, and as far as the public sentiment can be inferred from the occurrences of the day, we may say that this opinion had the sanction of the nation. The prosecutions, therefore, which were afterwards instituted in Connecticut, of which two were against printers, two against preachers, and one against a judge, were too inconsistent with this principle to be permitted to go on. We were bound to administer to others the same measure of law, not which they had meted to us, but we to ourselves, and to extend to all equally the protection of the same constitutional principles. These prosecutions, too, were chiefly for charges against myself, and I had from the beginning laid it down as a rule to notice nothing of the kind. I believed that the long course of services in which I had acted on the public stage, and under the eye of my fellow citizens, furnished better evidence to them of my character and principles, than the angry invectives of adverse partisans in whose eyes the very acts most approved by the majority were subjects of the greatest demerit and censure. These prosecutions against them, therefore, were to be dismissed as a matter of duty.”

Mark Field

I didn't know about the "savings" clause in the Sedition Act. Thanks.

Dilan Esper

See my long comment, containing a point-by-point persuasive refutation of every substantive argument in this post defending "signing statements", at its cross-posting at here:

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