“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

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: