In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This Minority Report responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove Marshall's name from the Report. What was once an assumed (if controversial) episode in Marshall's career has disappeared from otherwise exhaustive accounts of his life and work. As in Philip K. Dick's story, Minority Report, an alternate view of events has been unceremoniously erased from the official record.
The authors of this article challenge the decision to remove Marshall's name from the Minority Report. Marshall was the only person named at the time as the probable author, and Marshall had both reason and opportunity to draft the Address. The arguments of the Report not only track Marshall's views on the Constitution, they utilize constitutional arguments that were wholly unique at the time and would appear again, almost verbatim, in the future-Chief Justice's constitutional opinions. If Marshall penned this defense of the Acts, then this not only reveals the views of federal power he brought with him to the Supreme Court, it also helps illuminate public reaction to Chief Justice Marshall's nationalist jurisprudence. To his critics, Marshall's construction of federal power in McCulloch echoed the same arguments put forward to defend the hated Alien and Sedition Acts. The historical evidence suggests that not only were the arguments similar, they had flowed from the same pen.
Kurt T. Lash & Alicia Harrison, Minority Report: John Marshall and the Defense of the Alien and Sedition Acts, 68 Ohio St. L.J. 435 (2007).