Today in Supreme Court History: September 2, 1819

9/2/1819: James Madison writes letter to Judge Spencer Roane criticizing McCulloch v. Maryland.

Comments

[Krayt]

Thanks, whoever was wondering where these went.

Actually, they're almost a mini open-everyday thread.

[JoeFromtheBronx]

He had one yesterday too.

[JoeFromtheBronx]

https://founders.archives.gov/documents/Madison/04-01-02-0455

Different Framers debated the meaning of the Constitution in the decades after ratification. "Original understanding" at best was a basic lowest common denominator that was still in flux.

Madison in the letter notes difference of opinion would arise:

It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise, in expounding terms & phrases necessarily used in such a Charter, more especially those which divide legislation between the General and the local Governments; and that it might require a regular course of practice to liquidate and settle the meaning of some of them.

Imagine how it would be when applying these principles centuries later, with that much amount of new precedent to work with, and additional knowledge and experience learned.

Madison's complaint was that this was "too far":

But it was anticipated, I believe, by few if any of the friends of the Constitution, that a rule of construction would be introduced, as broad and as pliant as what has occurred.

That's at best naive, at worse bullshit. Anti-Federalists criticized the Constitution for the very reason. Also, people like Hamilton (perhaps not a "friend"?) would not find Marshall's rule unsatisfactory or unanticipated.

Madison opposed the bank originally, partially for being unconstitutional. He acknowledged its legitimacy when vetoing the second bank bill as well-established precedent while opposing the bill on the merits. He is not quite talking as a unbiased party.

[SMP0328]

The Anti-Federalists raised the possibility of the Necessary and Proper Clause being broadly read as a prime reason why a bill of rights should have been included in the Constitution. They used this as a reason why the Constitution should be rejected. Madison staved off rejection by promising that Congress would propose a bill of rights at the earliest opportunity.

Madison claimed the NPC would be construed narrowly (being used only when essential to Congress executing one of its powers) and so a bill of rights wasn't needed to modify it. McCulloch v. Maryland gave a very broad reading to the NPC and proved the Anti-Federalists were right to be concerned. This really had to grind his gears.