Patrick J. Charles has posted Resurrecting the Jurisprudence of Alexander Addison: John Marshall’s Unknown Influence in United States v. Fisher and McCulloch v. Maryland on SSRN. Here is the abstract:
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In the recently decided United States v. Comstock, the Supreme Court invoked the long standing “choice of means” doctrine when it interpreted a federal criminal statute through the Necessary and Proper Clause. The statute, 18 U.S.C. § 4248, granted the Department of Justice discretion to detain mentally ill, sexually dangerous prisoners beyond the date they would otherwise be released. The statute was challenged on the grounds that it exceeded the powers granted to Congress under Article I Section 8 of the Constitution. The Supreme Court upheld the statute on the grounds that it is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.”
In coming to this determination, the Court relied on the landmark opinion McCulloch v. Maryland, where former Chief Justice John Marshall used a “choice of means” analysis to uphold the constitutionality of the Second Bank of the United States. The Comstock Court reiterated Marshall’s dicta in McCulloch stating that “the relevant inquiry is simply “whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under” a power that the “Constitution grants Congress the authority to implement.” While some may view the Court’s reliance on Marshall’s “choice of means” doctrine as another footnote in the history of the law, the fact of the matter is that the Supreme Court has upheld Marshall’s definition of the Necessary and Proper for nearly two hundred years. If anything, the Comstock opinion gives credence to the significance Marshall’s interpretation of the Constitution in McCulloch, for the “choice of means” doctrine is the entire basis of our current federalist structure.
However, to give Marshall full credit for the “choice of means” doctrine is unfair, for he was not the first to lay claim to the doctrine when interpreting the Necessary and Proper Clause. It must be emphasized that the philosophical and legal influences of John Marshall have been the speculation scholarly discourse for some time. For instance, many legal commentators and historians alike have attributed the influences of Marshall’s opinions to being a strong Federalist, for many of his opinions echo the Federalists’ interpretation of the Constitution. However, Marshall’s opinions were also influenced by factors that sometimes conflicted with Federalist thought. This study does not set out to debate the extent of Marshall’s judicial influences. Instead, this study seeks to address the influence of Pennsylvania Circuit Judge Alexander Addison on Marshall’s interpretation of the Constitution’s Necessary and Proper Clause.
Legal commentators and historians have traditionally attributed Marshall’s interpretation of the Necessary and Proper Clause to that to Henry Lee, G.K. Taylor, Alexander Hamilton, and even Marshall himself. It is gone seemingly unnoticed that the historical evidence strongly suggests that Marshall was influenced by Alexander Addison’s analysis, for only Addison used the phrase “choice of means” to describe the Necessary and Proper Clause. While certainly men such as Alexander Hamilton attributed in influencing Marshall’s opinions in United States v. Fisher and McCulloch v. Maryland, the life, jurisprudence, and legal works of Alexander Addison deserve more scholarly attention.
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Addison knew that the Constitution had to grant Congress implied powers. However, he also knew this authority had to have constitutional limitations. Addison’s view was that Congress was limited in that it could only make “laws necessary or proper for the defence of its own authority[.]”116 This authority could be either expressly in the Constitution itself or implied as inherent to national sovereignty. Powers that did not fall into either of these categories were outside Congress’s “common law jurisdiction.”117 While Jeffersonian Republicans, and many Americans, feared this interpretation provided uncertainty as to the scope of congressional power to legislate, Addison reminded them that this is why the federal judiciary was independent.118 The federal judiciary determined whether Congress had a power over the “end” it sought to remedy “for the judiciary alone can determine the propriety of the law or the means!”119
It is here that Addison begins his analysis of the “choice of means” doctrine. First, he reminds the reader of the importance of the judiciary in the constitutional process, writing, “The judiciary will execute their preventive authority by all the means prescribed by the law” and the Constitution.120 At the same time though, Addison recognized that Congress must “execute their preventive power by statutes.”121 This power included “discretion of the choice of means, necessary or proper, for executing their powers[.]”122 Addison elaborated, writing:
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[T]he means used by...Congress...for the execution of their powers, presume themselves wiser than the constituted authorities. A power over the end implies a power over the means; and a power to make laws, for carrying any power into execution, implies a power to make laws for preventing or removing obstructions to the execution[.]123
