Originalism, John Marshall, and the Necessary and Proper Clause: Resurrecting the Jurisprudence of Alexander Addison

46 Pages Posted: 29 May 2010 Last revised: 13 Feb 2011

See all articles by Patrick J. Charles

Patrick J. Charles

Government of the United States of America - Air Force

Date Written: November 27, 2010


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” is unfair, for he was not the first to lay claim to the doctrine when interpreting the Necessary and Proper Clause. Indeed, 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 influence of Marshall’s opinions to being a strong Federalist, because many of his opinions echo the Federalist interpretation of the Constitution. However, Marshall’s opinions were also influenced by factors that sometimes conflicted with Federalist thought. This article does not set out to determine the extent of Marshall’s judicial influences. Instead, this article seeks to address the influence of Pennsylvania Circuit Judge Alexander Addison on Marshall’s interpretation of the Necessary and Proper Clause.

Legal commentators and historians have traditionally attributed Marshall’s interpretation of the Necessary and Proper Clause to that of Henry Lee, G.K. Taylor, Alexander Hamilton, and even Marshall himself. It has gone seemingly unnoticed that the historical evidence strongly suggests that Marshall was influenced by Alexander Addison, for only he 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.

Keywords: Alexander Addison, John Marshall, Comstock, necessary and proper clause, McCulloch, Alien and Sedition Acts, George Washington, Supreme Court, impeachments, Samuel Chase, Bushrod Washington, constituion

Suggested Citation

Charles, Patrick J., Originalism, John Marshall, and the Necessary and Proper Clause: Resurrecting the Jurisprudence of Alexander Addison (November 27, 2010). Cleveland State Law Review, Vol. 58, p. 529, 2010, Available at SSRN: https://ssrn.com/abstract=1616865

Patrick J. Charles (Contact Author)

Government of the United States of America - Air Force ( email )

Washington, DC
United States

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