“The Indecision of 1789” (Part III): Prakash’s Misreading of Lambert Cadwalader

This post is the second in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this view in that case. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The problem for the ostensible “Decision of 1789” is that it depends on interpreting the votes on Madison’s proposals as a majority of the House subscribing to the presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). In fact, a supermajority of the House voted against this view. 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 second on this list is Lambert Cadwalader.

Lambert Cadwalader voted “no” on both of the Madison/Benson proposals on June 22, before voting “Yes” only on the final bill. 1 Annals 604, 608. He is the only member who voted No/No/Yes. Only one other member voted against both of the Madison/Benson proposals, and that member, Tucker, was vocally opposed to presidentialism. These votes indicate that Cadwalader was opposed the entire Madison/Benson approach.         

         Nevertheless, Prakash claimed Cadwalader was a presidentialism because one of his letters revealed his presidentialist views. However, this letter did not. Prakash wrote that Cadwalader, in a letter to James Monroe two weeks after the vote, “noted that the final language was ‘scarcely declaratory’ of the removal power ‘being vested in the President by the Constitution,’ suggesting that he favored the earlier language precisely because he regarded it as an express declaration in favor of the executive-power theory.” Prakash at 1060-61.

However, Cadwalader’s letter contains no such suggestion. His letter describes the three main camps, and he rejects only one of them (the senatorial) while entertaining the other two. He wrote, “I must confess I could not be of the last Opinion,” i.e., only the senatorial opinion. Then he explained why the president should have the power in practical terms, which is, on balance, more a policy-based argument more consistent with a congressionalist approach, and less a constitutional interpretation that one would hear from a presidentialist.

When one reads the full letter, the context for “scarcely declaratory” becomes clear, even if Cadwalader’s own views are not: He observes that the bill was “scarcely declaratory of the [removal] Power being vested in the President by the Constitution, and yet it caused the most violent altercation.” He was commenting on how ambiguous the bill was, how it was unclear. See the letter below:

Letter from Lambert Cadwalader to James Monroe (July 5, 1789), 16 DHFFC 946-47.

Cadwalader was not voicing a preference for that view or a regret it was declared less scarcely; he was expressing surprise that such an ambiguous clause provoked such a fight. This is more evidence that the debate was confusing. One can imagine some voted “no” for the reasons Prakash suggests (the bill would be too ambiguous), but Cadwalader’s letter does not give such an explanation for his own votes or for others’ votes. It was description, not an implied view about his own vote.

Cadwalader may be difficult to categorize from his agnostic letter and his mixed speeches, but his votes offer clear enough evidence to categorize him as congressionalist. He seemed to have a general policy preference for the president to have a removal power, and he did not care much about which constitutional theory — and those who voted based on their policy preference are more consistent with a congressional view. His votes against both Madison proposals may have been reflective of his annoyance with Madison & Benson intervening to change the wording when the bill already reflected a grant of presidential power after so many days of debate on this issue. One might call him “pragmatic” rather than “enigmatic,” but either way, there is no evidence he endorsed presidentialism.

It is puzzling that Prakash would suggest that Cadwalader “favored” their executive-power theory based on an agnostic letter that observed the ambiguity of the bill, especially when Cadwalader voted against Madison’s approach not just once but twiceeven more decisively than the explicitly congressionalist members.



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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