A distinction is very frequently relied on between the freedom and the licentiousness of the press, which it is proper to examine.  This seems to me to refute every other argument which is used on this subject; it amounts to an admission 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 necessary to their declared powers.  There does not seem to me the smallest pretext for so monstrous an assumption; on the contrary, while the Constitution is silent about it, every fair inference is against it.