McCulloch Signing Statement!

I’m researching the Necessary and Proper clause and came across an article describing Chief Justice Marshall’s reaction to the public outcry in response to his McCulloch decision. He felt so vilified that he published an anonymous letter (signed “A Friend of the Constitution”) defending his decision. CJ Marshall says, in part:

In no single instance does the Court admit the unlimited power of congress to adopt any measure whatever, and thus to pass the limits prescribed by the constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court also expressly says, “should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal … to say that such an act was not the law of the land.

See Essays from the Alexandria Gazette: John Marshall, “A Friend of the Constitution,” 21 Stan. L. Rev. 456. I found this in Randy Barnett’s symposium piece, The Choice Between Madison and FDR, 31 Harv. J.L. & Pub. Pol’y 1005 (2008).

Marshall wrote a signing statement! Marshall claims that his opinion doesn’t mean exactly what everyone knew it would mean in practice!


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