“Removal of Context,” Part VII: “The argument is simply a disagreement with the Constitution” and the Problem of Originalism Hubris

In the next series, I will discuss another error in the Seila Law amicus brief, the assertions about Madison’s Comptroller Proposal in late June 1789, when I discuss Prakash’s misreadings of speeches and letters from 1789 in his 2006 article “New Light on the Decision of 1789,” more like “The Unbearable Lightness of the Decision of 1789,” or “The Indecision of 1789.” For now, let it suffice to say: Yet another unequivocal claim in their brief is wrong, even if this error is more understandable due to the fragmentary nature of this debate (but isn’t that a frequent problem with originalist evidence?):

“This is a misreading of Madison’s position… But he did not propose any restriction on the President’s removal power… [Madison’s proposal] not derogate the President’s power of removal.” Amicus p. 24

In fact, their amicus brief is the one with the the misreading, as I explain here (“The Indecisions of 1789,” at p. 37-43, building on outstanding research by Jane Manners and Lev Menand here.

Speaking of excessive certainty and lack of self-awareness, the amicus brief included this remarkably hubristic passage:

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, & Jed Handelsman 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 p. 17

Remarkably, the amicus brief writers, after making a staggering number of misreadings and even misquotations, had the chutzpah to claim that we were not interpreting evidence, but were merely “disagreeing with the Constitution,” as if their interpretation was “the Constitution” itself. It turns out that their brief included a litany of ahistorical assumptions and errors. And quite a bit of originalist hubris and over-confidence.

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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