“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 presidentialist 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.

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

See the letter below:

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

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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