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.

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.

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