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. 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:
For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University Pennsylvania L. Rev. (forthcoming 2022), at SSRN.