“Removal of Context,” Part III: Misquoting Blackstone in Seila Law Amicus

Today, I posted a draft of my paper on SSRN here: “Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism,” forthcoming in the Yale Journal of Law & the Humanities, 2022. In an earlier post, I introduced a series of concerns about a series of misinterpretations of historical sources by unitary executive scholars to try to establish a general presidential removal power. In “Part II: Blackstone and ‘Dispose’ as ‘Remove’ in Seila Law Amicus,” I focused on one error in a 2020 amicus brief in the Supreme Court case Seila Law v. CFPB. brief, misinterpreting Blackstone. That discussion sets up this post, Part III, the next error in the same set of passages.

In this post (“Part III,”) I focus on a misquotation of Blackstone iI think this is the most problematic example, a Supreme Court amicus brief misquoting Blackstone by selectively deleting important words and moving the word “not” to reverse the meaning of the quoted sentence. Their brief is linked here. You can find the relevant passages from Blackstone following this link.

Let me first repeat what I wrote in an earlier post: As I told the co-authors in my letter on Oct. 13, I believe these misinterpretations were in good faith. I also acknowledged that I have made good-faith errors in an amicus brief myself, and I understand all too well how these sources can be misread.  See my apology here. See one of the Seila Law co-signers for his generous post here: Michael Ramsey, “Jed Shugerman Apologizes to Tillman and Blackman (Updated).”

      My chief concern is how the Seila Law brief repeatedly misuses Blackstone and relies on scholarship that similiarly misinterpreted historical sources. The brief altered Blackstone’s words to change his meaning. I am also concerned that the reliance on the Decision of 1789 is problematic, because Sai Prakash’s “New Light on the Decision of 1789,” 91 Cornell L. Rev. 1021 (2006), cited in the brief and then cited in Justice Thomas’s Seila concurrence, relies upon a series of misreadings of the historical sources and miscategorizations of multiple House members. I document my concerns here in this draft, “The Indecisions of 1789: An Originalism Cautionary Tale.”

      The Seila Brief’s affirmative historical case is in Part I, which has two parts: A. “The English Constitutional Backdrop,” which relies more on Blackstone than any other source (p. 3 and from p. 6 to 11); and B. “The Decision of 1789,” through which the brief explicates and validates its interpretation of Article II (p. 12 to 19). The remainder of the brief rebuts arguments about the First Congress and then criticizes Humphrey’s Executor. It is fair to say that the brief’s two most significant sources are Blackstone and the First Congress. My point is that these errors are not marginal, but they are part of the central structure and substance of the brief.

As the previous post (Part II) explained, the brief first misinterpreted Blackstone’s use of the word “dispose” as “remove,” when Blackstone was using the word consistently in the opposite way, to distribute or appoint to office, not remove. Now we move to the second misinterpretation in the amicus brief’s passages on Blackstone: Misquoting Blackstone on “Subordinate Offices.” The brief claimed that Blackstone “explained that these offices are not ‘in any considerable degree the objects of our laws.’” But Blackstone had put that “not” in a very different place. Blackstone’s meaning was the reverse of the meaning the brief gave this passage: from his non-statement to statement, an explict statement of uncertainty about X to a statement of X.

Here is the relevant passage from the brief, with the problematic descriptions in bold: 

“In a section of his Commentaries entitled “Of Subordinate Magistrates,” Blackstone described the principal officers—namely, “the lord treasurer, lord chamberlain, the principal secretaries, [and] the like”—as “his majesty’s great officers of state” and explained that these offices are not “in any considerable degree the objects of our laws.” Id. at *327. In other words, the principal officers of state were executive, not legislative, creatures.

– Amicus brief p. 8

In a follow-up article “In Search of Prerogative,” Wurman similarly elaborated, misquoting this same sentence out of context: “[H]is majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like [, are not] … in that capacity in any considerable degree the objects of our laws ….” Wurman, p. 142 n. 205.

Unfortunately, these quotations make selective edits and deletions that change Blackstone’s meaning from uncertainty to certainty, and they leave out Blackstone’s alternative sufficient explanation.

This is the full quote from Blackstone, from an introductory paragraph of Chapter 9, with the important omissions in italics:

And herein we are not to investigate the powers and duties of his majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them.”

– Blackstone at *327

The deletions fundamentally change the meaning, plus there is a fourth problem of context about the assumption that “great officers of state” can be equated to “principal officers.”

         The first two deletions change the meaning from a statement of uncertainty to a statement of fact. Blackstone was not asserting a claim about removal or any other power; Blackstone was saying explicitly “I do not know” X, and thus “we are not to investigate” or discuss X here. It was not part of the substance on subordinate magistrates, but rather, a prefatory or introductory sentence about what would not be covered in the chapter. It is odd to cite this as evidence. Blackstone’s phrasing suggests or hints that they probably are not protected from removal and serve at the king’s pleasure, but he is avoiding saying so and avoiding any specifics about which offices. In Chapter Five, Blackstone wrote that the privy council serves at the king’s pleasure, but one can infer here that Blackstone is unsure how far “at pleasure” control extends as a matter of law: the treasurer? Which principal secretaries? 

         The next deletion of “or have any very important share of the magistracy conferred upon them” also changes the structural meaning, because the “or” is logically significant as an alternative explanation. Blackstone indicates that he is “not investigating” or discussing these high offices in a chapter on “subordinate magistrates” because, at least in part, they are not magistrates, regardless of their status as “objects of law.” Blackstone had defined magistracy as “the right of both making and of enforcing the laws,” which is  a curious combination of legislative and executive power. 1 Blackstone *146. It makes sense in a book on law and legal offices that Blackstone would set aside offices that he did not think were law-related, and this subject-matter modesty was his independent sufficient reason for “not investigating” those offices in this chapter, separate from whether the offices were “objects of our laws.” Moreover, it is not obvious that “objects of our laws” in this section necessarily would refer to removal or protections against removal. One can infer it from the topics of the chapter, but it is far from clear evidence. But the most fundamental problem is that the brief was using Blackstone to make a positive factual claim, even though Blackstone was plainly acknowledging uncertainty and lack of knowledge. Blackstone as a legal expert was understandably more interested and more familiar in his Commentaries on the Laws of England in investigating legal officers, and he may have been admitting less knowledge or less focus on non-magistrates with other administrative roles (such as in finance, foreign affairs, religion, etc.) Simply as a matter of either/or sentence structure, one simply cannot cite this sentence as a statement of historical fact about the Crown’s power of removal.

Next up: “Disagreeing with the Constitution”?

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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