Originalism and the Seila Law Brief, Part II: Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus

This is the second post in a series of responses to Mike Ramsey and Ilan Wurman on the unitary executive history and their use of Blackstone and historical sources in their Seila Law amicus brief. As I said in my first post on Jan. 7, I want to reiterate my appreciation that these two co-authors have stepped forward to defend their use of Blackstone. I also appreciate that they have conceded error on one of the uses I raised (their misinterpretation of the royal prerogative of “disposing” offices as removing from office). They contend that this error was inconsequential. They also claim that changing the wording and plain meaning of a Blackstone quotation was simply a “clarifying” of its overall meaning. I disagree.

Blackstone’s list of prerogative powers may seem like an esoteric and irrelevant consideration for American law. However, it is precisely the clarity of an established enumerated list that they claim the Framers relied on, and that they say differentiates their approach of republican rule of law, as opposed to “unbounded” executive power or “Schmittian” authoritarianism (McConnell p.28). If they cannot cite removal as a listed prerogative power, they aren’t following their declared method or the historical narrative that they’ve claimed to distinguish their argument from royalist cherry-picking. The list is their own difference between being bound by law or unbound by law.

Wurman wrote, “I think Jed is right that I read too much into the passage. I don’t think the error changes any substantive conclusions, but I think it’s important to correct the record… In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt.” 

Ramsey followed with a similar conclusion: “Ilan Wurman – the principal author of the Seila Law brief – acknowledged that the brief read too much into this particular phrase (and I agree).  But the overall implication of these passages seems unmistakably to be (as the brief said) that the king had ultimate control over prosecutions, law implementation, and offices.”

This response is one of the big-picture problems with the brief, and maybe a big-picture problem with originalism’s moving goalposts [Originalism claims to support rule of law values with clear and stable historical meaning, but here the history seems to be ripe for cherry-picking episodically for royal powers]. Both Wurman and Ramsey say here in these conclusions that the relevant historical question is “What were the powers of the English king circa 1787?” This is an assumption that the Framers were royalists or modeled the presidency on the full powers of the king. And are we to imagine that the Ratifiers knew the actual details of English administrative practices within English central government? Instead, we should focus on what the American Founders read, understood, and wrote. To be fair, they say elsewhere that this is the relevant question, which is why it is so important to get Blackstone right and not misinterpret or misquote him. The relevant question is about what the Framers and Ratifiers read, intended, and meant on this side of the Atlantic circa 1787.

The answer is both simpler and clearer (what was written on the established lists they used) and more complicated (how they split up that list). Their co-author Michael McConnell rejected Ramsey’s and Wurman’s royalist approach in his recent book aptly titled “The President Who Would Not Be King.” His more appropriate question is: What traditional English executive powers did the Framers intend to distribute? McConnell’s answer is that the Framers relied on Blackstone’s list of prerogative powers, and they did not automatically give them to the president, but instead, assigned some to Congress, some to the president, some to both, some to neither. Kings used and abused many powers. A list of prerogative powers is the line between legal and extralegal.

Why Do They Rely Heavily on Blackstone and Royal Prerogative?

Mike Ramsey wrote (with my emphasis added): 

“As described below and in a series of subsequent posts, on further reflection I think the Seila Law brief was correct in its characterization of Blackstone, though it might have done a better job of supporting its conclusions (one must bear in mind that the length of amicus briefs is limited and Blackstone was only a small part of the brief).”

In fact, Blackstone was their opening argument and the first five pages of their substantive argument. In the short “Summary of the Argument” on p. 3, they highlight Blackstone as one of their “important historical sources,” and the cite four pages of Blackstone for their core opening claim: “[I]n eighteenth-century English law and practice the executive magistrate had the power to remove principal executive officers as part of the executive power to carry law into execution.” 

To Ramsey’s credit, he also acknowledged in this post why Blackstone was so important: “As Michael McConnell shows in his great book The President Who Would Not Be King, the Constitution’s framers looked to Blackstone’s descriptions of the executive power in England as a starting point for their design, although they also made very substantial changes.” But did the brief actually follow McConnell’s explicit method of tracking Blackstone’s prerogative powers “as defined by law”? And did McConnell’s book follow its stated method on tracking Blackstone’s “list”? If Blackstone did not refer to removal as a “prerogative” power or list it as such, then there is a problem with both the brief and the book.

Another reason these scholars put so much emphasis on Blackstone and the First Congress/”Decision of 1789” is because the Constitution explicitly addresses appointment but does not mention removal, and most of the standard kinds of evidence for original public meaning during the Convention and Ratification Debates does not support the unitary theory (e.g., both Madison in Federalist #39 and Hamilton in #77 explicitly reject the unitary theory on removal). [Links to my papers on the unitarians’ problems here: “The Indecision of 1789: An Originalism Cautionary Tale” ; “Vesting”; “Removal of Context.“;  “Faithful Execution” with Leib and Kent; “Fiduciary Constitutionalism” with Leib.] The unitary theorists need to reach back to Blackstone and the English king and reach forward to the First Congress in order to expand the meaning of “executive power” and claim that “executive power” included removal of executive officials. 

To modern 21st century ears and our assumptions about royal power, this claim seems unremarkable, but it turns out that early modern English administrative history is far more complicated than that, given that England was a limited monarchy mixed with aristocracy and offices-as-property. As Blackstone noted himself, many offices were not only protected from removal; they were often held for life, for an removable “term of years,” and were even inheritable to descendants and sellable (though sale was more heavily restricted). More on this below.

The unitary theorists rely on Blackstone because they need a historical basis for a capacious meaning of “executive power,” broad enough to give the president implied powers beyond the ones listed in Article II (e.g., veto and pardon), but, they say, not so broad as to be lawless. There are many problems with relying on the general history of the English monarchy as the Framers’ model for a republican president. These scholars know they cannot just create an American model based on things sometimes done by English kings. The scholars have said themselves that such an open-ended royalist approach to expanding the term “executive power” so capaciously would risk a kind of absolutism or authoritarianism. But the “English royal prerogative” could have provided a bounded and enumerated list of powers for the Framers to distribute, some to the president, some to Congress, and some to neither.

This claim that the Framers and Ratifying generation understood “executive power” to include “the royal prerogative” not otherwise assigned elsewhere is heavily contested, but for the sake of understanding the structure of [McConnell’s new version] of the unitary argument, let’s assume it arguendo. Once the unitary theorists assert this connection to the royal prerogative, they acknowledge that they rely on Blackstone to provide that bounded list. Here is a key passage from amicus co-author Michael McConnell’s introduction “Purpose, Scope, Methods,” in A President Who Would Not Be King (2020), p. 11:

In its broadest sense, “prerogative” sometimes is used to mean power undefined by law, unrestrained by law, and, when necessary, superior to law. Locke famously described prerogative as the “Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it.” Prerogative is therefore associated with the Schmittian conception of sweeping emergency powers and an unchecked executive. In the British constitutional tradition, however, the prerogative powers (plural) were defined by law. The king could act unilaterally within his prerogatives but not range outside them. In this tamer version, the law defines the bounds and subject matter of prerogative powers but does not govern the content of decisions made within those bounds. Under the common law, executive decisions based on prerogative could be challenged as ultra vires but not as unreasonable, unjustified, or ill-motivated.

McConnell, p. 11

When McConnell contrasts his approach to the “Schmittian conception,” it’s a reference to Carl Schmitt, and those are strong words – appropriately strong. It’s not just a rejection of the openly Schmittian scholars like Adrian Vermeule. He is distinguishing his legal “bounded” approach from the unbounded approach to Article II “executive power,” and rightly allows a role for Congress (i.e., he does not embrace “indefeasibility” for implied powers). The notion is something like: We’re in the Anglo-American rule of law tradition, not mid-20th century German lawlessness. By recognizing the traditional limits of “ultra vires,” McConnell wisely acknowledged the limited scope of executive power. He also relies on Matthew Steilen’s excellent work on the Framers’ more limited use of “legal” prerogative “defined and limited by law,” as opposed to unbounded royalism (p. 29).

To follow through on such limits, McConnell relies on Blackstone’s explicit “lists,” similar to Article I’s enumerated powers limiting Congress’ power. In McConnell’s introduction, he announces:

A principal conclusion is that the framers self-consciously analyzed each of the prerogative powers of the British monarch as listed in Blackstone’s Commentaries, but did not vest all (or even most) of them in the American executive.

McConnell p. 11

These passages in “Purpose, Scope, Methods” laid out McConnell’s method and thesis: The Framers were working from Blackstone’s list of royal prerogative and distributed them to a mix of the president, the Congress, or neither; this method allows for implied presidential powers, but still reflects the Framers’ commitment to a limited or bounded executive.   McConnell often relied on Blackstone’s list of prerogative powers (or “established” “lists of royal prerogative powers”) as the basis for Article II several times. See 39, 95, 206, 235. See also 78, 256, 330. See also chapter 7, “The Framers’ General Theory of Allocating Powers.” The book’s title reflects the book’s method: the Framers were not re-creating a king, so don’t draw from history to find just anything done by a king. That would be cherry-picking from almost a millennium of uses and abuses of royal power. The limited lists of royal prerogative were a source of executive power “defined” and “bound… by law.” 

Then McConnell created a list of “the most important prerogative powers still vested in the Crown at the time of the composition of the United States Constitution” and included “removing officers other than judges.” P. 30. Similarly, he wrote at p. 99, “But the eighteenth-century monarch continued to have important prerogative powers, such as the power [McConnell lists fourteen, including]… to appoint and remove officers… to list some of the more important.”  McConnell made similar references to removal as a prerogative power or a royal power at 161-62, and implicitly 39, 95. 

The problem is that I cannot find a reference to removal or anything like it on any list of prerogatives in Blackstone or Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown, which McConnell stated were his two “principal sources for the law of prerogative.” p. 368 n. 7. The lists including removal on p. 30 and 99 have no footnotes, other than a general reference to Blackstone and Chitty citing no specific page numbers. Similar references to “lists” or defined prerogatives at p. 26-27, 206, 235, and 256 do not cite where to find such lists. The section “Presidential Power to Remove Officers” claims, “The king had the prerogative power to remove most officers at will. (The right to some offices was a form of property, held in fee…” (p. 162) The rest of the paragraph [Jan. 11 correction: passage on offices held at pleasure] cites only two specific examples from Blackstone (sheriffs and justices of the peace) and a 20th century historian William Holdsworth. Neither one described removal as a royal prerogative (the Holdsworth references were unclear, and to McConnell’s credit, he did not overclaim from Holdsworth’s discussion of the “cabinet” (454)). I can address these sources in more detail in my paper (or in a more detailed follow-up post).

[Update: photos here of p. 162 and its notes, including the surprising reliance on the conduct of King George III in 1783, in the aftermath of losing to the American rebels, suggesting here and in their amicus brief that it was a positive example, not an anti-model, for the Americans who had just rebelled against him. A 20th century historian’s loose reference to “prerogative” is not the same as a contemporary use of the term.]

P. 162

The bottom line is that I can’t find any evidence that Blackstone or any contemporary sources listed or explicitly described removal as a royal prerogative. Maybe I’ve missed something, but I have been chasing down their footnotes and sources for months. And Wurman’s and Ramsey’s replies have not pointed to anything specific, only some examples of offices held at pleasure (proving not enough) (Ramsey Part 3 & 4) or general passages on royal power (proving too much) — such as a claim that “dominion” over those “commissioned” or over “officers” means removal (Ramsey Part 1), except both categories include judges… who were not removable. So Blackstone’s “dominion” does not mean what they claimed it means.

As a practice, it seems like “cabinet” level officials were indeed removable at pleasure, but even for these offices, the removal power is not described in Blackstone or other contemporary sources as a prerogative power, as far as I’ve seen. In my paper and blogposts, I have identified several passages in Blackstone that suggest the opposite: not only was removal not a royal prerogative; it was not a general traditional norm. 1 Blackstone 334-36; 331, 341; 2 id. at 36; see my paper for the other contemporary and secondary sources explaining in more detail; More on that in a future post.

I have been working my way through Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown(1820), McConnell’s second most important source, and Sir Matthew Hale, The Prerogatives of the King [composed 1641–1649], cited by McConnell and the amicus. So far, I cannot find any reference to removal as a prerogative or general power, but I have found passages suggesting limits on removal throughout English history, Chitty 80-85; Hale 111-12. Some of these passages indicate life tenure offices at high level national positions.See Hale 111-12, see also JC Sainty, “The Tenure of Offices in the Exchequer,” 80 English Historical Review 449-75 (July 1965) on the important offices of chancellors and chamberlains.

Julian Mortenson, in his “Article II Vests the Executive Power, not the Prerogative Power,” Columbia L. Rev. 1224-28 (2019) created a list of 39 prerogatives from Blackstone, spanning 1 Blackstone pages 242 to 306, from the power “to make treaties, leagues, and alliances with foreign states and princes” and “the sole prerogative of making war and peace” to the power to build lighthouses and markets to the right to gold mines, washed-up goods, whales, sturgeon, and “valuable animals as are found wandering” without an apparent owner. One of those prerogatives was “the prerogative of erecting and disposing of offices,” which their amicus misconstrued. None of the listed powers mentioned removal or anything like it.

A Puzzle or a Solution?

McConnell suggests that it “is a puzzle” that the Framers put appointment explicitly in Article II, but not removal:

The king had the prerogative power to remove most officers at will… The Committee of Detail and the Convention addressed and allocated every other significant royal prerogative, but not the Removal Power. Yet it is hard to see how it could have been neglected; it is crucial to the structure of the executive branch… Given the undoubted importance of the Removal Power, it is mystifying that the drafters said nothing about it. There are no plausible strategic reasons for silence on the matter.

McConnell 162-63

Perhaps we can solve McConnell’s puzzle by challenging his historical assumption that removal was a royal prerogative… and his modernist assumption that removal at will is “crucial to the structure of the executive branch.” Maybe it is because McConnell’s general theory could be right, but the specific application here was wrong: The Framers may have been using Blackstone’s list of prerogatives to distribute and name powers, and the Framers did not name removal because removal was not on Blackstone’s list. This absence would be consistent Blackstone’s understanding of England’s mixed history of offices as lifetime property or unremovable for a term of years. (2 Blackstone 36).

McConnell vs. Amicus? Take Care vs. Vesting? Duties vs. Powers?

This is where the prerogative path in McConnell’s book diverges from the brief’s two paths. All three are historically problematic. 

First, McConnell may have been/could have been mitigating the “not on a prerogative list” problem by not relying on the Executive Vesting Clause for removal. Instead, he relies on the Take Care clause (166, 262). This move has advantages for supporting the unitary theory: In McConnell’s schematic, Vesting Clause powers are defeasible, while Take Care powers are indefeasible. McConnell also recognizes that the Executive Vesting Clause basis would go too far: it would invalidate civil service laws because “executive power” would apply to the removal of any executive officer (165).  But this opportunity to mitigate or avoid the prerogative problem gets lost when McConnell decides to invoke “Take Care” as a prerogative power. It seems like McConnell is now suggesting that the Take Care clause is a catch-all for combining royal prerogatives, and perhaps he is shoehorning an assumed/mistaken “removal” royal prerogative into an assumed “Take Care” prerogative. On page 68, he has a chart that lists the duty to “Take Care That Laws Be Faithfully Executed” as a “Prerogative Power of the King.” On page 166, he writes of removal as indefeasible, “The Take Care Clause, which is a duty that implies the power to supervise all officials engaged in execution of the law, has the hallmarks of prerogative.” Neither claim had a footnote. It does not appear McConnell was drawing on Blackstone, because, as Ethan Leib and I have found, Blackstone associated “faithful execution” language with the duties of bailments, not with royal prerogative and kings.  As Andrew Kent, Leib,, and I detailed in “Faithful Execution and Article II” in 2019, the “Faithful Execution” language in the Take Care clause and the Presidential Oath had a original public meaning of imposing duties and limiting discretion, and the language was not drawn from the empowering royal coronation oath, but from the limiting oaths of ministers, mid-level officials and even low-level functionaries. “Take Care” and “faithful execution” did not have the hallmarks of prerogative, nor is it clear why duty-imposing language would lead either to indefeasibility or to powers greater than the duty. As McConnell says elsewhere in the book in crticizing Justice Holmes, “Most of the provisions of Section 3 to which Holmes referred are actually duties rather than mere powers, which makes a significant difference…” 242-43. The language of “take care” and “faithful execution” is more duty than power, and it is puzzling that this non-royal republican language of duty and limitation could generate a power greater than England’s kings had.

The amicus brief did not follow McConnell’s problematic path to Take Care as prerogative. It stuck with the combination of take care and vesting. But that meant two different errors. First, they had to stick with arguing that removal was a prerogative power, and that led to mistakenly grasping for “disposal” (in “the prerogative of erecting and disposing of offices”) as removal. To Ramsey’s and Wurman’s credit, they concede error, but they fail to see its significance. They seemed to have understood the importance of McConnell’s anti-Schmittian “legal prerogative” hook, or otherwise they would not have stretched the meaning of “disposal” so far. Without a prerogative power, they’re grasping at things kings did, i.e., royalism. The disposal error is especially puzzling, not only because Blackstone consistently used the word as “distribution,” but so did McConnell – at least six times, and never as removal. McConnell 69, 97, 122, 229, 230, 275.

Without the word “disposal” at their disposal from Blackstone’s list, they are left with the approach that McConnell rightly rejected. The argument about whether the Framers intended to vest any of the royal prerogative to the federal government at all is heavily contested. The influential book by Eric Nelson, “The Royalist Revolution,” does not claim that some/many Framers wanted to restore the full panoply of late eighteenth-century royal power, but instead, Founders like Hamilton, Wilson, and Adams wanted to bring back traditional executive powers based on an established legalist prerogative, more often looking back to the seventeenth century. These Framers were still critics of the more recent monarchs’ use of powers. I don’t know of any evidence that the Framers were drawing more generally on whatever powers English kings had exercised or any new powers they had gained in the eighteenth-century. And even if they did, the scope of royal removal power beyond the cabinet is unclear. The amicus brief took on a burden to prove its claims about English royal power AND about how royal power fit into the Framers’ scheme and original public meaning. Even before we get to the problem of misquoting Blackstone, their amicus brief fell short of that burden when it turns out they fundamentally misinterpreted Blackstone’s list.

Up next: The brief’s second path: relying not on Blackstone’s legal prerogatives but on royalist anecdote. And why misquoting Blackstone is a big deal.

Originalism and the Seila Law Amicus Brief, Part 1: Some Initial Thoughts on Snark, Chutzpah, Hubris, Hamartia, Generosity, and Social Media vs. Amicus Norms

I’d like to take this opportunity to apologize for some sarcasm, to explain other sarcasm and strong wording, to offer context, and to offer some initial reflections on the norms of scholarly amicus briefs, articles, and Twitter. This post is the first of a series leading up to my conversation/debate with Mike Ramsey, a co-author of the Seila Law amicus brief, on Eric Segal’s “Supreme Myths” podcast. (Part 2 on McConnell’s use of Blackstone and royal prerogative is here. I’ll post a link to the podcast on Friday here). I sincerely appreciate Mike’s willingness to have a conversation on this topic. Mike is a great guy, and we have had excellent public and private conversations about originalism (I’m an originalist only in theory, but he is an originalist in practice). He was a terrific guest in our Constitutional History Workshop at Fordham this fall, where he presented this outstanding article, “Originalism and Birthright Citizenship.” I’d like to clear the air here so that Mike and I can move forward with our conversation next week. I am sure we would anyway, but I would like to apologize and provide context.

As long as Mike has flagged problems with my tone, I also have some thoughts about their amicus brief and the style of originalist overconfidence and overclaiming. At the risk of being taken as snarky, I would identify it as a style of “originalist chutzpah.”

Eric’s podcast is for a general audience, and it is not the right forum for detailed questions about the First Congress, “the Decision of 1789,” and Blackstone. But for the narrower audience who wants such details, I will offer in this series of posts a review of my questions – frankly, some sharply pointed but necessary questions – which I hope Mike would agree that he and/or co-authors will address in some format. 

On Nov. 30th, I posted a paper “Removal of Context” (forthcoming Yale Journal of Law & the Humanities 2022) on the misuse and misquoting of historical sources by originalist scholars to support their unitary executive theory of unconditional presidential power. In a recent Supreme Court case (Seila Law v. CFPB in 2020), several of these scholars filed an amicus brief which, among other problems, misquoted and misinterpreted Blackstone, and they also relied on misinterpretations and misuses of sources from the First Congress to elaborate on the ostensible “Decision of 1789” (in my opinion, the more numerous, more serious misuse of sources, and still unaddressed by the amicus co-authors. See my paper “The Indecision of 1789” here). The Roberts Court adopted their incorrect historical arguments.

On Dec. 1st, the brief’s lead author, Ilan Wurman, replied on the Notice & Comment blog here. In mid-December, Mike Ramsey posted “A Sharp Exchange on Blackstone, Removal Power, and the Scholars’ Brief in Seila Law v. CFPB. In late December, he followed up with a series of four. First and foremost, I want to express appreciation that both Wurman and Ramsey have stepped forward to explain their interpretation and editing of Blackstone. To their credit, they both acknowledge that they misinterpreted Blackstone’s use of “disposal” of offices as “removal” from office, instead of appointments to offices at his disposal. However, they claim that this error does not affect their conclusions. I disagree – and I am relying on their co-author’s own terms about the “Schmittian” stakes: the significance of Blackstone having “listed” powers, and of the distinction between powers “defined by law” vs. the dangers of “an unchecked executive.” Michael McConnell, The President Who Would Not Be King 11, 28, 30 (2021).

I will address the larger substantive problem of misquoting Blackstone in a later post. It’s important to note that Blackstone is just one of many errors I’ve identified, and none of the amicus co-authors have addressed the even more significant errors in their longer discussion of the First Congress and the Decision of 1789. But Blackstone is the terrain they’ve chosen to defend. At this point, I think it is helpful to see the original Blackstone quote next to how they quoted it. I put the two texts side-by-side in this tweet. In this post “Removal of Context, Part III: Misquoting Blackstone in Seila Law Amicus,” I provided three reasons why they should not have changed Blackstone’s statement from “I do not know X” to a positive claim of “not X,” beyond the elementary problem of changing quotations from their original plain meaning, especially in an amicus brief.

Neither one acknowledges a substantive error, because they claim they still got Blackstone right.  Wurman conceded “I grant the matter is less clear than I originally believed,” but concluded: “In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary…” [For the record, I did point to a lot of evidence to the contrary. More below and in the next post]. 

Ramsey offers this partial acknowledgement on their misquoting Blackstone (only partial, because he still claims their “shortening” was really a “clarification” and “the Blackstone passage meant what the brief said it meant”):

That said, I agree with Professor Shugerman’s criticism to this extent. In the Seila Law brief (which I signed and assisted in drafting), this key quote from Blackstone is shortened and clarified with brackets, rather than being quoted in full with a supporting explanation. On further reflection I think that was not the right way to do it; a quotation of this importance should be set out in full rather than being edited, so that the reader can draw independent conclusions. In my scholarship (including blog posts!) I try to include long block quotes from key sources for exactly this reason (often over editors’ forceful objections). A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable. But here it should have been resisted. (Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant).

Ramsey offers these more general conclusions:

Thus while I thank Professor Shugerman for engaging in the debate and prompting this reassessment, I find his objections to the originalist account of Blackstone on removal power to be unpersuasive…

I think [my] foregoing analysis largely confirms what prior executive scholarship has said about it, and refutes the strongly worded objections Professor Shugerman has raised.

Before offering substantive responses to Wurman and Ramsey, I first want to address Ramsey’s concerns about my tone. In addition to frequently calling my exchanges “sharp” and my critiques “strongly worded,” Ramsey wrote that he found some of my engagement “snarky.” I’d like to take this opportunity to apologize for my snarkiness or sarcasm. Ramsey did not identify what he thought was snarky, but in retrospect, I think three of my tweets on Dec. 6 or 7 (here, here, and here) in response to Wurman were sarcastic or too sharp, and that tone was counterproductive. I think we are still working through the norms of social media, and I will offer more context and thoughts below. But as long as we are taking about blogs and tweets, perhaps the norms of amicus brief quotations and tone towards other scholars is also on the table today.

I offer no apologies for my “strong wording” and “sharply” contesting the way they misquoted Blackstone and the way they misused the First Congress. The misquoting and misuse of historical sources is a big deal, especially in an amicus brief to any court, and especially to the Supreme Court. If Michael is implying in his five posts repeatedly using the phrases “strongly worded” and “sharp” (as well as one reference to “snarky”) that my conduct generally has been less than collegial, I think that implication is unfair. I wish Michael had offered some context for balance, but I’ll provide it here: for months, I have been privately raising these questions with the co-authors because I sincerely tried to avoid such a spectacle.

In the winter/spring of 2020, I started reading the complete 1789 House debates with an eye towards the role of faithful execution as a “good faith” limit on presidential power, akin to “good cause.” Soon after Covid hit, I spent even more time digging into these debates and how judges and scholars had described (and misdescribed) them as a “Decision of 1789” endorsing the unitary theory.  I noticed a troubling number of discrepancies between what I was reading and how Sai Prakash had described those debates or categorized some members. I thought about publicizing these concerns, but it was Covid, so I had limited access to some of the document, and I assumed others would have limited time and access to examine these questions. It also felt unfair to confront scholars for errors at the height of Covid, when many people were juggling family and health issues. I also knew that sheltering in place with my family was not any place for an academic fight – not for me or for anyone else.

Thus, I tried to take a generous approach. I emailed Prakash some specific questions about these discrepancies in April 2020, after the oral argument in Seila Law but while a final decision was still pending. He wrote back that he would take a look and get back to me. In the meantime, I posted my paper on Decision of 1789 (updated draft, “The Indecision of 1789”), but I kept all of my notes of Prakash’s discrepancies understated and “below the line,” i.e., in footnotes. I deliberately avoided any provocative comments or accusations, and instead focused on the curious absence of Senator Maclay’s extensive diary entries from all of these scholars’ discussions. The overlooking of Maclay’s published diary does not compare to misinterpreting other sources (omission vs. commission, etc.). Around this time, one of the brief’s co-authors, Michael McConnell, generously teamed up with me to plan a conference on the histories of presidential power, designed to bring together scholars on different sides of these debates, from different disciplines. McConnell has been generous and encouraging open dialogue throughout this process. We invited Prakash, Wurman, and Ramsey to participate, and they agreed. I was hoping to have a forum to raise these questions with Prakash about the Decision of 1789, but this summer, after I raised additional questions about his misuse of sources, he changed his mind about participating and backed out. Over the past 20 months, he has not addressed any of my many questions or concerns, either while Seila Law was pending, nor after.

In the meantime, I continued working on my book on the unitary executive and my draft articles “Vesting” and “Removal of Context” on Blackstone, which led me back to the Seila Law brief and its problematic use of Blackstone. That’s when I started seeing a new round of discrepancies. I contacted Ilan by email, and we had some constructive exchanges about my draft. As part of these conversations, I took a closer look at the brief to understand the structure of their historical argument – and I saw more problems. I wrote a 15-page letter with an appendix, and I sent it to each co-author, a letter that I acknowledge may have been too long and detailed — almost as long as the substantive section of their brief. Here was my introduction:

October 13, 2021

Dear Separation of Powers Scholars amicus co-signers,

I hope you are doing well. I write to you all reluctantly. Over the past four or five years, I have had productive exchanges and engaging conversations with most of you. I have not met some of you, but I have learned so much from all of you. I begin with thanks for your generosity and your deep research on Article II and the presidency. It was not my goal or expectation to write this letter, but after some mostly constructive exchanges with a few of you, I have reached a stage where I believe it may be more helpful to share my concerns with all of you.

I write to identify some concerns about errors and misreadings of historical sources in the Separation of Powers amicus brief in Seila Law. I believe these mistakes were in good faith, surely attributable to the complexity of England’s unwritten constitution evolving and revolving through the seventeenth and eighteenth centuries, the opacity of Blackstone’s language, the fragmentary nature of the letters and congressional records in the early republic, and the unfamiliar use of phrases in the Founding Era. I acknowledge that I have made good-faith errors in an amicus brief myself, which I took a few days to acknowledge, and for which I apologized publicly and sincerely.[1] I sincerely invite your feedback, too. I have tried to write this letter fairly but candidly.


[1] Michael Ramsey, “Jed Shugerman Apologizes to Tillman and Blackman (Updated),” at https://originalismblog.typepad.com/the-originalism-blog/2017/09/jed-shugerman-apologizes-to-tillman-and-blackmanmichael-ramsey.html

I had hoped this collegial approach would be more likely to persuade, and it did persuade them on one question (“dispose of offices” means distribute, not remove from office). But in a few conversations, I realized I did not persuade them on the significance of that error, nor about my many other concerns. And no one would acknowledge the most significant errors on the Decision of 1789. I gave them a heads-up that I would be posting my draft “Removal of Context,” and I decided to make that draft read like the substance of my letter: fair but candid. Tough but fair.

On Nov. 30, about six weeks after sending my letter, I posted my draft on SSRN, and I gave Ilan a heads-up.  I posted a thread on Twitter linking the paper, with this note:

“I think these errors are in good-faith. This material is complicated, the 18th c. terms are obscure. But that’s the point: Originalists claim supremacy as the most reliable & objective method, on the eve of overturning Roe/Casey. These errors should give us all pause.”

One day later, Ilan posted his reply on Notice & Comment. On the one hand, he acknowledged the “dispose” error, but it is frustrating to see the misquoting problem treated dismissively, the other problems ignored, and to read this sentence: 

In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary.

That’s not right. I offered a lot of new evidence. See “Removal of Context” at 24-25, citing 2 Blackstone at *36 (discussion of offices as property, an “estate… either to him and his heirs, or for life, or for a term of years, or during pleasure only.”) In the original draft posted Nov. 30, I added a contemporary account from Edmund Burke and secondary sources (Chester, Aylmer, Birk, Manners and Menand) explaining the significance of these limits on royal removal. Since Nov. 30th, I have added even more context and more Blackstone material to this section, but these basic points were in my earlier drafts that I sent Ilan in October.

I also provided specific evidence about their misunderstanding of “commission” in reliance on this passage at 1 Blackstone 243: “All others acting by commission from, and in due subordination to him.” “All others acting by commission” would include judges. (See id. at 268, 351; see also 317, 334). If amicus thought (and Ramsey reiterated in December) that “due subordination” signifies removal power, can they explain how judges fit in this sentence? They still haven’t. And they haven’t replied to my evidence related to what I identified as “perhaps the most significant problem with their use of Blackstone: The English “principal secretary” is not the equivalent of the U.S. Constitution’s “principal officer.” (see my paper at 30-31).

I acknowledge that my sarcasm may not have been helpful. My twitter poll comparing their use of Blackstone’s prerogative to Shania Twain’s prerogative and Bobby Brown’s prerogative was meant as part of my prerogative “to have a little fun” instead of venting frustration directly at the dismissiveness to this explanation.

But if Mike is going to publicly call out my posts as “sharp” or “snarky,” I think he should have also acknowledged the collegial, patient, and generous way I tried to handle these concerns since April 2020, and my efforts at dialogue and inclusion in the conference we’ve planned for May. (If I may say so myself).

And as long as Mike is raising concerns about “sharp” tone and “snark,” and as long as we are talking about tone and norms, I want to highlight a passage from their amicus brief that I had flagged for them in private correspondence in October – directly but discreetly. They still haven’t acknowledged it as problematic. If they are worried about tone, I’d appreciate if they might address this passage of an amicus brief, which I would not call snark, but I think this passage commenting on our work is indicative of chutzpah and hubris, and perhaps hamartia, not only in the context of being in the middle of a brief with so many errors, but as a broader problem endemic to originalism: over-confidence about the certainty of original public meaning and their own exclusive unitary (in both senses of that word) interpretation of the Constitution.

[Update 1/8: In a December 6 post, I flagged that they made these claims in the brief: “the overwhelming weight of the evidence is that removal was part of the executive power, necessary to the President’s role of law execution, and not assigned to Congress.” p. 7; “Additionally, the power to remove principal executive officers unquestionably belonged to the executive magistrate as a necessary component of the executive power to carry law into execution.” p. 9. In this post, I also flagged this section of the brief.]

Here is the more generous way I phrased this concern in my letter (and I will post my full letter as a pdf).

In the brief’s long section on the Decision of 1789, the brief also includes language of certainty and dismissiveness of our interpretations:

“Some modern scholars have argued that the Take Care Clause supports limiting the President’s ability to remove executive officers. See, e.g., Andrew Kent [Ethan Leib, and Jed Shugerman], Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2112 (2019) (‘Our history supports readings of Article II . . . that limit Presidents to exercise their power in good faith . . . . So understood, Article II may thus place some limits on the pardon and removal authority.’). This argument fails, however, because it effectively transfers the duty to ‘take care’ from the President, to whom the Constitution gives such duty explicitly, to Congress. The argument is simply a disagreement with the Constitution.

Amicus at p. 17

This passage was not the misuse of a source, but I ask about its appropriateness in an amicus brief. Just as there is a Take Care clause, so too is there “faithful execution” language as a limit on the take care clause, and there is a Necessary and Proper Clause. Imagine if, on the other side, we had written that the unitary argument fails, because it ignored the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” and it ignored the public meaning of legislative power to create officers and set their terms and conditions, and thus, we might have asserted that the unitary theorists’ argument is “simply a disagreement with the Constitution.” But this would have been improper. These different texts yield plausible interpretations.

As a (faint-hearted) originalist myself, I am concerned that the method of originalism is at risk of digging too deeply into its own assumptions, orthodoxies, and shibboleths. It seems indicative of a narrow, formalistic approach and excessive certainty about a singular original public meaning, even when historical sources point in other directions or at least in multiple interpretations or plural original public meanings. This language, assuming that the unitary interpretation of “take care” is “the Constitution,” is remarkable in a brief that contained many historical errors and incorrect assumptions.

I have been sharing this research and these questions for a while. I thank Mike Ramsey for posting my paper on the Originalism blog in the summer of 2020.[1] I thank Ilan Wurman for his acknowledgement of my paper and the questions it raised. I most wholeheartedly thank Michael McConnell for reaching out across the political spectrum and including me in a conference on the history of presidency. I am hopeful that this dialogue will be productive.

[1] Michael Ramsey, “Jed Shugerman on the Imaginary Unitary Executive,” Originalism Blog, June 15, 2020 at https://originalismblog.typepad.com/the-originalism-blog/2020/06/jed-shugerman-on-the-imaginary-unitary-executivemichael-ramsey.html

In my own work, I find that these historical and textual sources cut in favor of non-delegation doctrine but against unitary theory. When I have made good-faith errors in an amicus brief with co-authors, I acknowledged them. I have no reason to suspect anything other than good faith in interpreting complicated material and distant language. I have tried to engage specific authors before writing this letter with sincere hope for dialogue. I will be making these concerns more public in the near future, now that I have been in contact with some of you privately over several months, and that dialogue seems to have run its course. I acknowledge that I surely have missed additional evidence and sources on the other side, and I hope you will take these questions as good-faith engagement, too. I have tried to be balanced in this letter. I have learned from reading your work, and I hope to continue learning and seeing what evidence I have surely missed. We all have a responsibility to get the history right, and I am sure my work will benefit from your replies and your feedback. I look forward to dialogue.

Sincerely, Jed Shugerman


I hope this context helps. My sarcasm in December was inappropriate. I was frustrated especially with Prakash and all of the co-authors who had not taken responsibility. I should not have directed such frustrations at Ilan, the only one who had stepped forward and stepped up. For that, I apologize. But it is well past time for those senior scholars to be accountable for the many errors and misuses of sources they either drafted, cited, or signed onto in an amicus brief.

More to come. Next up: The combined significance of the “disposal” error and the Blackstone misquotation

“The Indecisions of 1789”: The Curious Absence of Senator Maclay’s Diary (Part IX)

This post is the ninth in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

My digging into the use of sources by unitary scholars on the Decision of 1789 started with going back to the House debate, and I started seeing some discrepancies and inconsistencies. The standard account is that the House debate is the only record of the legislative debate, because the Senate did not record debate. The unitary theorists’ reliance of one chamber’s legislative history has always been an irony, because their strict separation-of-powers doctrine otherwise rejects unicameralism (see, e.g., Chadha). Furthermore, strict textualists reject legislative history.

But I saw that Chief Justice Taft (in Myers in 1926) and Prakash had relied on the diary by Senator William Maclay for his record of the key Senate vote on the Foreign Affairs Bill. Myers v. United States, 272 U.S. 52, 115 n.1 (1926). See also Clinton v. Jones,520 U.S. 681 (1998); Prakash, 91 Cornell L. Rev. at 1032.

I had just begun to dig into these debates when Covid struck and shut us in our homes in March 2020. I had been reading the House debate, but then I wondered, “Did Senator Maclay’s diary have anything more on this debate?” I knew he often wrote down juicy details of life in the First Congress. I assumed I had left my copy in my (then-Covid closed) law school office, but somehow, it was in my home office shelf. For my history PhD coursework in 2000, Professor Joanne Freeman had assigned The Diary of William Maclay, which by then had become so commonly assigned in history classes that it was paperback. Freeman is interested in political culture, and no one was more interesting on Founding political culture than William Maclay. That may be why I kept the diary at home as part of “good political history reading,” and not in my faculty office. Here is my copy from her class 20 years ago:

Maclay’s diary has been cited frequently for his record on the debates over the Judiciary Act and other debates related to executive power. See Clinton v. Jones,520 U.S. 681 (1998) and articles by Charles Warren (1923), Akhil Reed Amar & Neal Kumar Katyal (1995), Tom Lee, Daniel J. Meltzer, Christopher Yoo, and Prakash’s amicus co-author and leading unitary theorist Steven G. Calabresi. See more recently Trump v. Vance, 140 S. Ct. 2412, 2435 (2020) (Thomas, J., dissenting).

Maclay had hidden his diaries, but a family member discovered them after his death. They were first published in 1890, a century after his time in the First Congress. The Documentary History of the First Federal Congress (DHFFC) series made them more widely available in 1988. It is “Volume 9” of the Documentary History of the First Federal Congress that sits in every major law library. Volume 9 includes Maclay’s diary and a detailed description of the Senate debate, as well as some notes on this debate by Vice President Adams and two other Senators, which generally corroborate Maclay’s account. Instead of turning to Maclay’s diary beyond the mere vote count, Prakash instead skipped to DHFFC’s Volume 16 for private letters. It turns out that Prakash then misinterpreted six of those letters (one by VP Adams, two by Rep. Hartley, one by Rep. Smith, one by Rep. Peter Muhlenberg, and one by Rep. Cadwalader, plus a confusing use of one by Rep. Ames) as well as misinterpreting a series of floor speeches, to push the unitary theory far beyond the historical record, as I document in my article. In these linked posts, I contrasted Prakash’s claims or partial quotations with my photos of the full letters.

The unitary theorists’ use of Senator Maclay for the vote tally but the curious absence of Maclay’s recordings of the debate raises questions about their thoroughness, their awareness of the historical materials and/or their selectiveness about those materials, and about the practice of originalism more broadly.

(Only two scholars, both of whom take the unitary view, have cited portions of the debate: Charles Thach quoted from Maclay’s notes only from the early days of the debate. Charles Thach, Jr., The Creation of the Presidency, 1775-1789, 140-41 (1923). Very recently, Akhil Amar in his 2021 book The Words That Made Us cited one speech from the debate, without providing the contrary context from the rest of the Senate debate that I have identified from Maclay).


It turns out that Senator Maclay’s account of the July 1789 debate raises serious questions about whether the meaning of the deliberately ambiguous and obscure statutory language was clear in the Senate debate — or whether it was deliberated obfuscated and whether its Senate sponsors retreated from such a meaning. It also provides more of an explanation for why the House deleted the more explicit grant of removal power to the president: Because they already knew that the Senate was pushing back on the House and Madison’s tariff/economic program (as Maclay documented) and the Senate was also resistant to giving up its power to block presidential removals. Thus, the more likely reason for the puzzling reversal-gambit by Madison and Benson on a Monday, after passing their preferred explicit language on the previous Friday, was what one of their colleagues confessed about their strategica ambiguity. John Vining, a vocal presidentialist (whom Prakash also misinterpreted), in the last floor speech before the key House vote:

“[H]e thought it more likely to obtain the acquiescence of the senate on a point of legislative construction on the constitution, than to a positive relinquishment of a power which they might otherwise think themselves in some degree intitled to.” 11 DHFFC 1035 (June 22, 1789).

It’s no wonder that Madison’s opponents mocked his gambit on the House floor as a retreat. See my paper here for a full discussion of Maclay’s diary, his record of Senate hostility to Madison’s economic agenda coinciding with the House’s Foreign Affairs debate, and strategic ambiguity in both the House and Senate to obfuscate and get their bill passed both Houses over a clear majority opposed to their theory. I posted a shorter essay on Lawfare in July 2020 with the key passages here.


“The Indecisions of 1789”: Prakash’s Misreading of VP John Adams (Part VIII)

This post is the eighth in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The first set of problems in Prakash’s misinterpretation of “the Decision of 1789” is trying to find more votes for the unitary theory, attempting to imply a majority of the House voted for a presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). He misreads Hartley, Cadwalader, and Laurance, and overlooks how Madison and Laurance reflect the rejection of “indefeasibility” in the unitary theory. A second set of problems is mistakenly claiming statements show mixed views or ambivalence by a pivotal bloc of members that some call “congressionalist” but Prakash called “enigmatic.” These members were actually part of the bloc Prakash assumed to be presidentialist, so this argument backfires by showing that the “presidentialist” members were actually more ambivalent themselves, and perhaps they voted strategically.

A third set of problems comes from misreading letters as descriptions of the House debate, exaggerating their description as more presidentialist. The last posts showed Prakash’s misinterpretation of Muhlenberg’s and Smith’s letters. This post addresses his exaggeration of a letter by Vice President John Adams.

Prakash quoted Vice President John Adams to support the same point in the paragraph on William Smith:

The Vice President himself complained that his “Vote for the Presidents [sic] Power of Removal, according to the Constitution, has raised from Hell an [sic] host of political and poetical Devils.” These accounts indicate that the removal language was generally understood to endorse the “constru[c]tion of the Constitution, which vests the power of removal in the President.”

– Prakash at 1066.

First of all, Adams was among the most vocal advocates of the presidentialist theory in a series of a letters after the vote. He was engaged in full spin for presidentialism. Adams is no reliable neutral observer. He was a grandstander and perhaps eager to be a martyr/hero for his vote. It is hardly surprising that others perceived his reasoning, but it is surprising that this letter is so ambiguous about whether others shared this view. The full sentence is: “My exertions for my Vote for the Presidents [sic] Power of Removal, according to the Constitution.” Letter from John Adams to John Lowell (Sept. 14, 1789), in 17 DHFFC at 1538.

The use of the word “my” are intriguing. Adams was not using “our.” It’s a stretch to claim that this language communicated a general meaning or intention. When Adams says “my vote” may have produced a backlash, he simply indicates that observers understood his stated reasons, not necessarily that they perceived a prevailing theory in the House and Senate. This is not as problematic as the other interpretations, but if this represents the best evidence of a public understanding of the Senate vote, it suggests that the evidence is weak.

“The Indecisions of 1789”: Prakash’s Misuse of William Smith of Maryland (Part VII).

This post is the seventh in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The first set of problems in Prakash’s misinterpretation of “the Decision of 1789” is trying to find more votes for the unitary theory, attempting to imply a majority of the House voted for a presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). He misreads Hartley, Cadwalader, and Laurance, and overlooks how Madison and Laurance reflect the rejection of “indefeasibility” in the unitary theory. A second set of problems is mistakenly claiming statements show mixed views or ambivalence by a pivotal bloc of members that some call “congressionalist” but Prakash called “enigmatic.” These members were actually part of the bloc Prakash assumed to be presidentialist, so this argument backfires by showing that the “presidentialist” members were actually more ambivalent themselves, and perhaps they voted strategically.

A third set of problems comes from misreading letters as descriptions of the House debate, exaggerating their description as more presidentialist. The last post showed Prakash’s misinterpretation of Muhlenberg’s letter. Prakash also cited William Smith of Maryland to suggest a presidential meeting of these votes:

“Contemporaries saw the Senate vote to retain the House’s removal language as a vindication of the executive-power position… Representative William Smith of Maryland described the Senate vote as favoring the President’s “right of removal from office as chief Majistrate [sic].”[1]

However, this letter more specifically sought to reject the senatorial view, not necessarily distinguishing between the presidential theory of Article II or the congressional theory of delegation, and Prakash left out Smith’s caveat that the debate was not decisive for all the departments:

“The Presidents power of removall from Office they were equally divided on the question, when it was determined by the Vice President in favor of the Presidents right of removal from office as Chief Majistrate, without the consent of advice of the senate; this determination took place on the passing the bill for establishing the department for foreign affairs, whether or not the debate will be renewed when the other bills of a Similar nature are before that house time must Show.”Letter from William Smith (Md.) to Otho H. Williams (July 27, 1789), in 16 DHFFC at 1150.

There are hints, but only hints here. Smith was a merchant, not a lawyer, so one should be careful of trying to read too much into his imprecise phrasing as implying constutional significance. The reference to a “president’s right” could be a constitutionally based right, but it could also be a legislatively delegated “right.” The phrase “Chief Majistrate” does not refer to any constitutional text. A president’s administrative role as chief magistrate could be a reason for a congressionalist to choose to delegate the power. Smith was only explicit about rejecting the senatorial view, and (in another kind of expressio unius) he conspicuously does not address the congressional view, implying no focus on that view.

But it is crucial to acknowledge Smith’s note at the end: “…this determination took place on the passing the bill for establishing the department for foreign affairs, whether or not the debate will be renewed when the other bills of a Similar nature are before that house time must Show.” If Smith thought this debate resolved a fundamental interpretation of Article II, then he would have been less likely to think the debate would be “renewed.” But if he thought the House was focused on the appropriateness for foreign affairs, then it seems more likely he perceived the vote was case-by-case, department-by-department, and still a question of congressional discretion. The letter is not clear, but on balance, it points to a congressional or unclear resolution.


[1] Prakash at 1066.

“The Indecisions of 1789”: Prakash’s Misuse of Peter Muhlenberg (Part VI)

 

This post is the sixth in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The first set of problems in Prakash’s misinterpretation of “the Decision of 1789” is trying to find more votes for the unitary theory, attempting to imply a majority of the House voted for a presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). Prakash in “New Light on the Decision of 1789” (2006) erred in trying to count Hartley and Cadwalader, overstated Laurance, and failed to acknowledge the significance of both Laurance and Madison rejecting “indefeasibility.” A second set of problems is mistakenly claiming statements show mixed views or ambivalence by a pivotal bloc of members that some call “congressionalist” but Prakash called “enigmatic.” These members were actually part of the bloc Prakash assumed to be presidentialist, so this argument backfires by showing that the “presidentialist” members were actually more ambivalent themselves, and perhaps they voted strategically.

A third set of problems comes from misreading letters as descriptions of the House debate, exaggerating their description as more presidentialist.

Prakash over-reads a letter from Rep. Peter Muhlenberg to Dr. Benjamin Rush claiming a majority of the House subscribed to presidentialism. He first quotes Muhlenberg:

Though a ‘Considerable Majority of The House have determined that the power of removal is vested solely in The President as The Chief Executive Magistrate,’ this majority was divided. According to Muhlenberg, one group thought it was the “duty of the Legislature to declare by Law where this power is Lodgd, in order to prevent Confusion hereafter.” Presumably, these were the executive-power partisans who voted to reject Benson’s second amendment.[1]

– Prakash at 1058

First, Prakash does not tell the reader that Muhlenberg was a yes/yes/yes presidentialist himself, and thus might not be the most reliable and neutral observer, even if Prakash were right about the contents of Muhlenberg’s letter. Muhlenberg may be affected by confirmation bias, selectively perceiving some “yes/no/yes” faction as sharing the same constitutional interpretation, and he may have reason to spin this account as a validation of presidentialism to other political figures elsewhere (like Dr. Benjamin Rush, a signer of the Declaration of Independence and surgeon general of Washington’s Continental Army).

Second, when one reads Muhlenberg’s entire letter, it is more consistent with a congressional interpretation. Compare Prakash vs. what Muhlenberg actually wrote: Prakash posits that Muhlenberg described both camps as presidentialist, but then divided on how clear or implicit to make the text. But Muhlenberg’s letter (below) clearly distinguished a congressional (yellow) vs. a presidentialist (orange) camp. Note that Muhlenberg was clearly describing a presidential camp as “a fair construction of the Constitution, The power of removal is vested in The President,” and the rest of the paragraph elaborated on implied executive powers and the formal and strict separation of powers. By contrast and in this clear context, the other “part” was more clearly congressionalist:

-Letter from Peter Muhlenberg to Benjamin Rush (June 25, 1789), in 16 DHFFC (Correspondence), at 856.

One part of the letter seems to suggest that the pivotal yes/no/yes faction agreed with the presidentialists on “vesting” and merely disagreed about whether to declare or imply the power. Prakash could have been reading too much into the word “vested.” The Constitution has a vesting clause, but vesting is not limited to a constitutional source of power; both in the 1780s and now, Americans have regularly used “vest” to describe legislative assignments of power.[2] The congressionalists would also “vest” power in the president, but through legislation rather than constitutional interpretation of Article II. Moreover, Muhlenberg’s reference to “the duty of the Legislature” to “declare” the power could be a duty of Congress to clarify a delegation and establish a policy, rather than a duty to interpret Article II. This “duty” would be consistent with congressionalism, rather than a permanent unitary/presidentialist position. Muhlenberg could have used the phrase “vesting somewhere” to mean that this group thought the Constitution vested in Congress the power to delegate, and Congress would then vest by statute in the president.

            Muhlenberg then gave a relatively clear contrast with the other camp’s principles: more explicit and formal about the separation of powers. He wrote that powers should “allways remain seperate in every free Country” [sic]; specific and sophisticated about the constitutional vesting of executive powers (some explicitly in the Senate, some explicitly in the president, but “residuary” powers were implicitly vested in the president). Why would Muhlenberg go into such detail about how this second camp (the “yes/yes/yes” followers of Madison and Benson) believed in the principles of separation of powers and the “residuary powers” of the president if it were shared by both camps? The best reading of this letter is that Muhlenberg’s first reference to vesting was imprecise or too general, but the next paragraph was much more detailed and clear about  differences in principles that is more consistent with the first camp as “congressionalist” (“the duty of the legislature to declare by Law where the power is Lodgd”) and a second camp as “presidentialist” (Article I and Article II separate executive powers, but “residuary powers” are vested in the president.[3] Prakash quoted from the more confusing part of the letter, a fragment that could be read either way, but he did not acknowledge that the rest of letter clarified Muhlenberg’s points and undercut his argument.

            Moreover, Peter Muhlenberg could be forgiven for writing inconsistently and using words like “vest” imprecisely. He was not a lawyer, but a minister and Revolutionary War hero. His brother Frederick was Speaker of the House, but Peter was not engaged in this debate, nor was he engaged in any debates. The Annals of Congress records Peter giving just one short comment (summarized in two short sentences) on imports in April 1789, and he does not appear again on the House floor.[4] He also seems to have missed many votes. Why is Prakash straining to read one confusing letter this way, when the House floor debates are clear? If Prakash wants to show a “considerable majority” for presidentialism, it would have made more sense to count the House member-by-member (as this Article does) rather than rely on a seemingly biased and confusing description by a presidentialist.


[1] Prakash at 1058, quoting Letter from Peter Muhlenberg to Benjamin Rush (June 25, 1789), in 16 DHFFC (Correspondence), at 856.

[2] See “Vesting,” Stanford L. Rev. forthcoming 2022. Even in Seila Law and Collins, Justices use “vest” to describe a legislative delegation of power.

[4] 1 Annals 139 (April 1789).

“The Indecisions of 1789”: Prakash’s Misreading of Fisher Ames and John Vining (Part V)

This post is the fifth in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The first set of problems in Prakash’s misinterpretation of “the Decision of 1789” is trying to find more votes for the unitary theory, attempting to imply a majority of the House voted for a presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). Prakash in “New Light on the Decision of 1789” (2006) erred in trying to count Hartley and Cadwalader, overstated Laurance, and failed to acknowledge the significance of both Laurance and Madison rejecting “indefeasibility.”

A second set of problems comes from suggesting that the pivotal (or in his terms, “enigmatic”) members of the House were more mixed or open to both interpretations. His argument is that the pivotal bloc (those who voted for the first Madison proposal but against the second) were not really “congressionalist” but were more open to both interpretations.

Prakash relies not on members from the pivotal “yes/no” members of his “enigmatic” group, but on the members he otherwise depended on to be presidentialist: Fisher Ames and John Vining.

Prakash’s relies on Ames and Vining and their mix of both kinds of arguments as representative of the pivotal yes/no/yes bloc. But they were yes/yes/yes presidentialist voters: Voting yes on both of Madison’s proposals. See 1 Annals 604, 607. Thus, when Prakash relies on their mixed arguments for evidence of more presidentialism, he was unwittingly pointing to the opposite conclusion: Madison’s yes/yes/yes voters were not as clearly presidentialist as Prakash claimed. Maybe some of them were just voting strategically — for a more ambiguous text that was more likely to get through a reluctant and skeptical Senate.

            Prakash brings in Ames’s description of the pivotal faction again without reminding the reader of Ames’s potentially self-serving spin. As a “presidentialist,” Ames had reason to describe some members as agreeing with his interpretation, but disagreeing on tactics.

On the one hand, Prakash’s description of Ames’s letter is more accurate than his description of Muhlenberg’s; Ames does offer some explanations for why the “yes/no/yes” voters may have been presidentialists who voted no because they preferred to keep the clear “removable” statement or they preferred a back-up. And Prakash also correctly recounts that Ames spoke positively about both theories and had mixed views: “Ames declared that he was satisfied that the President could exercise the removal power, ‘either by the Constitution or the authority of an act. The arguments in favor of the former fall short of full proof, but in my mind they greatly preponderate.’” Prakash at 1058, quoting Letter from Fisher Ames to George R. Minot (June 23, 1789), in 16 DHFFC (Correspondence) at 840, 840-41. Then Prakash wrote: “Ames’s comments suggest that some who voted against Benson’s second amendment not only believed that the original bill language was a better declaration of executive-power principles, but also that, should the executive-power theory prove to be wrong, the original bill could also be read as a delegation of removal power. Ames’s comments raise the possibility that some Representatives might have favored both the executive-power and the legislative-delegation theories, but ultimately opted for the former on the final vote.”

Prakash failed to tell the readers that Ames voted YES on both proposals. He was not a member of what he calls the “enigmatic” faction, but in Prakash’s ostensible “executive-power” presidentialist faction. Ames’s earlier comments may have described such voters, and his summary may be fair if he was referring only to Ames’s description of other members. However, it was misleading to suggest that Ames’s comments about his own vote and mixed views might illuminate the thinking of the “enigmatic” faction. Here, Prakash should have clarified his explanation and then conceded that Ames’s “yes/yes” vote was not as clearly presidentialist as one might have assumed.

In a confusing paragraph, it seems Prakash is presenting all of Ames’s views to explain the middle “no” vote, that the ostensibly “enigmatic” faction may have believed a mix of both theories. But because Ames was a yes/yes/yes voter, this letter should cut the opposite way: If Ames had mixed views and had doubts while being a leader of this bloc, perhaps some yes/yes/yes voters were a lot less “presidentialist” than the unitary theorists have assumed. This was a misleading use of Ames’s letter.

Prakash made the same mistake again with John Vining. Prakash suggests of the yes/no/yes “enigmatic” voters: “[S]ome Representatives may have favored both the executive-power theory and the congressional-delegation theory.”Prakash at 1048. But then he cites Vining as an example representative of the “enigmatic” faction’s openness to presidentialism. Vining indeed endorsed both theories: “If the constitution does not prohibit the exercise of this power, I conceive it to be granted either as incidental to the executive department, or under that clause which gives to congress all powers necessary and proper to carry the constitution into effect.” The Congressional Register (June 17, 1789), in 11 DHFFC 939. Like Ames, Vining was a yes/yes/yes “presidentialist.” Thus, Prakash’s example undermines his point: Ames and Vining illustrate that the “presidentialists” were ambivalent or had a mix of views.

Again, if Ames and Vining were open to both interpretations, it seems less likely than Prakash assumes that they were voting “yes/yes” on Madison’s proposals as a clear endorsement of a constitutional interpretation, and more plausible that they and others were voting for strategic ambiguity to get the bill through the Senate — which Vining hinted at during his speech in favor of voting for Madison’s more ambiguous clause:

“[H]e thought it more likely to obtain the acquiescence of the senate on a point of legislative construction on the constitution, than to a positive relinquishment of a power which they might otherwise think themselves in some degree intitled to.” 11 DHFFC 1035-36.

How many other yes/yes/yes voters were not really presidentialists, but were merely good vote-counters and understood the advantage of strategic ambiguity?

            It is also important to recall that Madison also had mixed views over time, and he sounded like a congressionalist/departmentalist in some of his mid-June speeches. Perhaps many of these representatives had strong views that presidents should have the power but did not have strong views about which constitutional theory was right. If some yes/yes/yes voters had mixed views about the basis for removal (sharing both presidential and congressional interpretations), it seems odd that they would risk re-opening the debate to a new vote on Monday after already prevailing on their bottom line, the “removable” text, on the previous Friday, and even more odd that they would put forward a more ambiguous text. This oddity can be explained by the “strategic ambiguity” theory. Instead of resolving a constitutional theory, they were really pursuing a legislative strategy with the Senate in mind: using a more ambiguous clause not because it hinted at Article II, but because ambiguity was more likely to win “the acquiescence” of a skeptical or opposed Senate.


“The Indecision of 1789” (Part III): Prakash’s Misreading of Lambert Cadwalader

This post is the second in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this view in that case. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The problem for the ostensible “Decision of 1789” is that it depends on interpreting the votes on Madison’s proposals as a majority of the House subscribing to the presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). In fact, a supermajority of the House voted against this view. In an effort to revive this theory, Saikrishna Prakash in “New Light on the Decision of 1789” (2006) suggests that there may have been more. But his effort to identify more depended on a series of misinterpretations and clear errors. The second on this list is Lambert Cadwalader.

Lambert Cadwalader voted “no” on both of the Madison/Benson proposals on June 22, before voting “Yes” only on the final bill. 1 Annals 604, 608. He is the only member who voted No/No/Yes. Only one other member voted against both of the Madison/Benson proposals, and that member, Tucker, was vocally opposed to presidentialism. These votes indicate that Cadwalader was opposed the entire Madison/Benson approach.         

         Nevertheless, Prakash claimed Cadwalader was a presidentialism because one of his letters revealed his presidentialist views. However, this letter did not. Prakash wrote that Cadwalader, in a letter to James Monroe two weeks after the vote, “noted that the final language was ‘scarcely declaratory’ of the removal power ‘being vested in the President by the Constitution,’ suggesting that he favored the earlier language precisely because he regarded it as an express declaration in favor of the executive-power theory.” Prakash at 1060-61.

However, Cadwalader’s letter contains no such suggestion. His letter describes the three main camps, and he rejects only one of them (the senatorial) while entertaining the other two. He wrote, “I must confess I could not be of the last Opinion,” i.e., only the senatorial opinion. Then he explained why the president should have the power in practical terms, which is, on balance, more a policy-based argument more consistent with a congressionalist approach, and less a constitutional interpretation that one would hear from a presidentialist.

When one reads the full letter, the context for “scarcely declaratory” becomes clear, even if Cadwalader’s own views are not: He observes that the bill was “scarcely declaratory of the [removal] Power being vested in the President by the Constitution, and yet it caused the most violent altercation.” He was commenting on how ambiguous the bill was, how it was unclear. See the letter below:

Letter from Lambert Cadwalader to James Monroe (July 5, 1789), 16 DHFFC 946-47.

Cadwalader was not voicing a preference for that view or a regret it was declared less scarcely; he was expressing surprise that such an ambiguous clause provoked such a fight. This is more evidence that the debate was confusing. One can imagine some voted “no” for the reasons Prakash suggests (the bill would be too ambiguous), but Cadwalader’s letter does not give such an explanation for his own votes or for others’ votes. It was description, not an implied view about his own vote.

Cadwalader may be difficult to categorize from his agnostic letter and his mixed speeches, but his votes offer clear enough evidence to categorize him as congressionalist. He seemed to have a general policy preference for the president to have a removal power, and he did not care much about which constitutional theory — and those who voted based on their policy preference are more consistent with a congressional view. His votes against both Madison proposals may have been reflective of his annoyance with Madison & Benson intervening to change the wording when the bill already reflected a grant of presidential power after so many days of debate on this issue. One might call him “pragmatic” rather than “enigmatic,” but either way, there is no evidence he endorsed presidentialism.

It is puzzling that Prakash would suggest that Cadwalader “favored” their executive-power theory based on an agnostic letter that observed the ambiguity of the bill, especially when Cadwalader voted against Madison’s approach not just once but twiceeven more decisively than the explicitly congressionalist members.



“The Indecisions of 1789”: Prakash’s Misreading of John Laurance and James Madison (Part IV)

John Laurance was another member who voted “yes,” “no,” “yes,” and thus falls in the pivotal group, which Prakash labeled “enigmatic.” Prakash erroneously claimed him as a presidentialist. Initially, Laurance’s speeches had been mixed when members who favored some kind of presidential removal were free to make mixed arguments. But by the decisive day when Madison’s proposal pushed members to take a side (June 22), Laurance clarified his position as a moderate congressionalist, with a only a limited degree of Article II power. He believed Congress had some power to limit presidential removal, but not the power to go so far as “good behaviour” tenure like judges. This view is consistent with the good-cause conditions in modern independent agencies

In a seeming concession, Prakash acknowledged that the House debate had not endorsed the unitary theory of “indefeasibility,” i.e., that Congress has no power to regulate presidential power. However, both Laurance and Madison indicate that the House rejected indefeasibility and favored Congress’s power to set conditions. In fact, just a week after this key debate over the Foreign Affairs department, Madison proposed a Comptroller protected from presidential removal in the Treasury bill.

Prakash’s discussion of John Laurance opened with this sentence: “In fact, the comments of other members of the enigmatic faction who spoke on June 22, 1789 suggest that, like Boudinot, they too endorsed the executive-power theory.” Prakash at 1053. And he concluded his discussion with this sentence: “Consequently, Laurance arguably voted for the final bill for the same reason Boudinot did: because it endorsed the executive power theory.” Id. at 1054. These conclusions do not fairly reflect the record. In a footnote, Prakash is more balanced: “Laurance’s comments are much more equivocal.”Id. at 1054 n.218.This description is more accurate, but it is buried in a footnote.

            The bottom line is that Laurance was more congressionalist than presidentialist, that Laurance did not give the “same reason” as the presidentialist Boudinot, and he is best described as a moderate congressionalist. His speeches are mixed, but his opening explanation for voting no on Madison’s second proposal on the pivotal day (June 22) was his clearest statement, and it was a statement of congressionalism. He also makes a confusing reference to “the constitutional power of the president,” a sign that he saw a limited degree of implied presidential powers. The records are fragmentary, so it is hard to know precisely what Laurance meant. The best reading of the speech was that Laurance was a moderate congressionalist, giving primary weight to congressional authority, with only secondary (and more limited) weight to an implied presidential power. Here is Laurance’s entire speech:


11 DHFFC p. 1034 (reprinting Congressional Register from June 22, 1789)

The notes of this speech are not exactly clear. The opacity of Laurance’s meaning is another cautionary note about relying on the notes of a debate in the 1780s, whether Convention notes, Ratifcation notes, or the notes from earlier Congresses, for solid evidence of meaning. Either Laurance was muddled, the reporter here was confused, or both. However, it is clear enough that Laurance was not giving the “same reason” as the presidentialist Boudinot. Boudinot, who spoke next, opened his speech with the opposite reason from Laurance’s opening: “Was against the motion [Madison’s second motion], because the constitution vested all executive power in the president.” Boudinot continued to say that the president could “remove, without limitation,” and he wanted “a legislative declaration, in order to prevent future convenience,” a legislative declaration of Article II’s implied removal powers, not like Laurance’s endorsement of the legislature’s “power to establish offices on what terms they pleased.” To Prakash’s credit, he did quote this explicitly congressionalist statement, but importantly, it was recorded as his opening statement, a clearer endorsement of a congressional perspective. It is also a mistake to suggest Laurance and Boudiot were “the same.” These two explanations were starkly different.

            It is true that Laurance endorsed both theories in the June debates. But his earlier speeches give context to his general endorsement of legislative power. On May 19, Laurance discussed a menu of options for congressional conditions: It was “the will of the legislature” to choose the “conditions upon which [an officer] shall enjoy the office,” including “good behaviour,” “unfitness and incapacity,” “causes of removal and make the president alone judge of the case,” as well as removal for any cause. See 10 DHFFC 733 (Laurance, May 19, 1789). Over the month of debates, Laurance apparently decided that “good behaviour” was appropriate only for judicial independence, but it would go too far for executive officers. One might assume that Laurance concluded that Article II implied a limited presidential removal power, and thus Prakash had a basis to suggest that Laurance partly endorsed the “executive-power” theory – but only partly. He might have agreed that Congress could not give the Senate a veto over removals of principal officers (the issue in Myers), but it is not accurate to put Laurance in the same category as other “presidentialists” and as a forerunner to unitary executive theory, when Laurance endorsed Congress’s power to set conditions like “incapacity,” similar to good cause. Given his confusing mix of both theories, Laurance is one of only a few representatives who could be described as enigmatic, but in the end, his speech on the pivotal day (June 22) is best described as moderately congressionalist, with such a limited view of presidential removal power that this article categorizes Laurance as a “less clear congressionalist.” One could make a case for Laurance in his own category, but it would be a stretch to categorize him as a presidentialist given his emphasis on voting “no” on Madison’s proposal for his stated reason of “legislative… power.”

            If Prakash wanted to claim Laurance as one of his presidentialist votes, he should have abandoned his claim that the House debate did not resolve the question of “defeasibility” or the power of Congress to regulate and set conditions on presidential power. He wrongly claimed that presidential “indefeasibility” vs. “abatability” was “never really contested.” Prakash at 1073-74. It was contested, and even if there was no vote on the issue, the number of “presidentialists” who opposed going as far as presidential indefeasibility show that the concept had been rejected.

Prakash conceded that the House was inconclusive and did not “decide” in favor of indefeasibility as part of his “Decision of 1789,” but he should have gone further to acknowledge that the House debates addressed whether Article II implied an unconditional removal power, and the members rejected it (just by adding up Laurance, the explicit congressionalists together with the senatorial and impeachment-only votes). Laurance was clear that Congress could regulate and impose conditions on removal.

Madison also proposed a “good behaviour” Comptroller a few days later, as I explained in this paper “The Indecisions of 1789.” See 11 DHFFC 1080-82 (June 30, 1789). He withdrew this proposal, but the debate confirmed that even Madison did not support presidential indefeasibility, and his colleagues generally confirmed that the earlier debate had left open Congress’s powers to regulate. Madison also endorsed congressional power to set conditions in Federalist No. 39:

“The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.”

Today the word “ministerial” has more of a connotation of inferior officers, but the Founding era commonly used “ministerial” for principal officers, even heads of departments. For example, Marbury v. Madison records “ministerial officer” used three times in reference to the Secretary of State. 5 U.S. at 138, 150. The English used the word “minister” for their highest executive offices. In Federalist No. 39, Madison was offering a dichotomy between Article III judges vs. “ministerial” offices, so it is more likely a comparison of the highest offices in each branch. Thus, it seems Madison included principal officers as under “legal regulation” of tenure. In 1789, Madison would clarify further in the direction of congressional power. On May 19, Madison stated at the beginning of the department debates: “[I]t is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour, or during pleasure.” 10 DHFFC 722, 729-30 (May 19, 1789).          

In Federalist No. 77, Hamilton wrote: “The consent of [the Senate] would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.” Thus, Hamilton, a well-known supporter of strong executive power, nevertheless had presumed the Senate would be co-equal with the President on “displacing” – that is, removing – officers.


If Prakash relied upon Laurance and Madison as part of a “Decision” in favor of presidential power, then he should concede that they also “decided” against the modern unitary position on indefeasiblity, the main conclusion in the Roberts Court’s Free Enterprise, Seila Law, and Collins decisions. Laurance was, at most, just a 17th vote out of 53 for some kind of implied removal power (albeit a thin one). However, if both Laurance and Madison explicitly embraced legislative conditions, how many of the other 15 members who Prakash counted as “presidential” rejected the Roberts Court theory of indefeasibility? If Prakash wanted to count Laurance in ways convenient for his preferred theory (even if Laurance’s vote still leaves him far short of a majority), he has to concede that Laurance was inconvenient for his preferred theory.

The Indecision of 1789: Misreading Thomas Hartley (Part II)

This post is the first in a series identifying the misinterpretation and misuse of historical sources as part of an originalist revival of the unitary executive theory and the Decision of 1789. The full paper is here, “The Indecisions of 1789.” The first post in this series is here. A paper on the misuse of Blackstone in the unitary executive Seila Law amicus brief and scholarship is here.

The problem for the ostensible “Decision of 1789” is that it depends on a majority of the House subscribing to the presidentialist/unitary interpretation of the Constitution, but only 16 members out of 53 fit this bill. In an effort to revive this theory, Saikrishna Prakash in “New Light on the Decision of 1789” (2006) suggests that there may have been more. But his effort to identify more depended on a series of misinterpretations and clear errors. The first on this list is Thomas Hartley.

Prakash describes Rep. Thomas Hartley as “a member of the enigmatic faction” who “was not opposed to the executive power theory.” Prakash at 1054. Prakash asserts, “Nothing in Hartley’s earlier speeches indicated a clear endorsement of the congressional-delegation theory. Nor is there a clear opposition to the executive-power theory.” Prakash at 1055 n. 223. This reading of Hartley’s speeches is inaccurate. Hartley may have demonstrated an open mind and a cautious tone, but his congressionalism and opposition to presidentialism were explicit.

Prakash cites Hartley’s speech on the pivotal day, Monday, June 22. The short speech is here, and it is clear:

Now here is Prakash’s misleading description of Hartley’s speech and false claims about Hartley’s later letters:

In his misleading summary of this speech, Prakash italicizes two words to suggest Hartley was ambivalent: Hartley… “advised that persons ‘not fully convinced that the power of removal [was] vested by the constitution in the president’” should vote “no” on deleting the clear language. But Hartley was not describing himself or the median “no” vote; he was making a broad pitch for more votes. Of course, he would cast a wide net at that moment, when he wanted to attract as many “no” votes as possible, even from those who leaned towards presidentialism but harbored doubts, much like a criminal defense attorney might argue to a jury that even if they suspect a defendant committed a crime, they should vote to acquit if not “fully convinced.” This wording is no evidence of Hartley’s own leanings toward presidentialism.

Prakash also describes Hartley as having “no doubts about granting authority to the President,” but again, this is conflating a policy view with a constitutional view, and not evidence of presidentialism. Both presidentialists and congressionalists supported granting the power to the president in this bill. The entire point of the debate Monday was the basis for the grant. It was entirely consistent with congressionalism to believe strongly in Congress delegating removal, so Prakash’s observation is a red herring, a confusing distraction from the constitutional debate. Hartley states that he is voting “no” (to retain the clear language) because he had “some doubts” specifically about whether the Constitution “vested” removal in the president.

Note how Hartley concluded his plea on that Monday to retain the clear delegation by voting “no” on the second motion: Granting removal to the president “might be done by retaining the words [the explicit “removable” clause] and without going beyond the avowed limits of the legislative authority.” The congressionalist view was to rely on the “legislative authority,” and not go beyond it. This is congressionalism.

Then Prakash moves from the floor speeches to his private letters: “Hartley’s subsequent writings suggest that while he might have preferred the original text, he nonetheless supported the executive-power theory,” citing two letters written in August 1789. First, it is unclear why private letters written more than a month later ought to outweigh the speeches made on the floor before the key vote. But let’s take a look at both of these letters:

The first, to Jasper Yeates on August 1, 1789, is consistent with his earlier congressionalism. Hartley is concerned that the Senate deleted the president’s removal power from the Treasury bill, the third departmental bill. Hartley wrote:

“To Morrow we shall possibly take it up—and I hope that none of the Men who voted right before will now fly the way in our House. Nay it would be better to loose the Bill than give up the Principle.”

Letter from Thomas Hartley to Jasper Yeates (Aug. 1, 1789), in 16 DHFFC (Correspondence) at 1209.

It is unclear why Prakash thinks this passage about a “principle” reflects a turn towards presidentialism. Constitutional interpretation has no monopoly on principle. One can have principles about legislative policy.

The unitary interpretation also has no monopoly on principle. Congressionalists and non-unitary interpretations based on the Necessary and Proper Clause and checks and balances also have principles. It is a telling error to assume the unitary theory is driven by “principle” but other views are not.

Prakash cites another letter written the following week on the same Treasury fight with the Senate over removal, but Prakash seems to make the same erroneous assumption about a presidentialist monopoly on “principle”:

“To Morrow I presume we shall determine that we adhere to our former Resolution—this will probably produce a Conference—but I think no Manœuvring will induce the Majority in our House to give up the Principle.”

– Letter from Thomas Hartley to Tench Coxe (Aug. 9, 1789), 16 DHFFC 1261.

That is the entire discussion. It seems Prakash assumes principle equals presidentialism, dismissing the possibility that congressionalists might also have principles. It is surprising that one would cite this letter as evidence of presidentialism when the actual floor speeches were clear as congressional.

It also seems Prakash was moving the goalposts on what constitutes “enigma” or presidentialism to add to those categories: Prakash concludes that Hartley’s statements “evince no hostility toward the executive-power theory.” Hartley opposed the executive-power theory by announcing his doubts and by explaining that his “no” vote – and others’ “no” votes – should be interpreted as a congressionalist vote for “legislative authority,” and no further. But is Prakash suggesting that opposition only counted if it was “hostile” or adamant? To Hartley’s credit, he made his arguments calmly and expressed no hostility, but his opposition was still explicit. Prakash concludes that Hartley’s opposition was “insubstantial” because he voted for the final bill, but Prakash misses the strategic of Madison’s ambiguity with such a convenient assumption: ambiguity gave opponents more permission to vote yes and tolerate an unclear meaning more than they would tolerate a clear rejection of their principles. Prakash’s claim to Hartley as “enigmatic” or “presidentialist” is a stark misreading of both his speeches and his letters.