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As was to be expected, Professor Corwin, in his article appearing earlier in this number of the Journal upon freedom of speech and press, accomplishes the difficult task of illuminating further a subject which has already been the occasion for much able discussion. Nevertheless, the very diversity of inferences which have been drawn by competent writers from the historical background against which stands the First Amendment warns us that contemporary construction gives no final answer to the problems we have to solve. Thus, from the well-known fact that opposition to the Sedition Act of 1797 was in part at least founded on doctrines of states' rights, Professor Corwin would apparently draw the inference that nationalists should uphold a broad view as to the power of Congress over speech and the press. But Mr. Hart has shown clearly the general consensus of opinion of all parties at the time of the adoption of the Constitution that neither by it nor by the First Amendment did Congress possess any general power over these subjects. Hence the inference is logically one of lack of power in Congress, and in fact its only powers in this regard are such as may be considered fairly necessary to carry out the grants of other powers to it. We must therefore always keep in mind that our problem is the application of the constitutional provisions to present-day situations. Surely Professor Corwin cannot justly tax liberal constructionists with inconsistency in asking that the restrictions of the First Amendment, too, shall not receive a construction that will reduce them to nothing.

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Freedom of Speech – A Note on Professor Corwin’s Article, 30 Yale Law Journal 68 (1920)

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