“The Indecisions of 1789”: Prakash’s Misreading of Fisher Ames and John Vining (Part V)

This post is the fifth 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 misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The first set of problems in Prakash’s misinterpretation of “the Decision of 1789” is trying to find more votes for the unitary theory, attempting to imply a majority of the House voted for a presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). Prakash in “New Light on the Decision of 1789” (2006) erred in trying to count Hartley and Cadwalader, overstated Laurance, and failed to acknowledge the significance of both Laurance and Madison rejecting “indefeasibility.”

A second set of problems comes from suggesting that the pivotal (or in his terms, “enigmatic”) members of the House were more mixed or open to both interpretations. His argument is that the pivotal bloc (those who voted for the first Madison proposal but against the second) were not really “congressionalist” but were more open to both interpretations.

Prakash relies not on members from the pivotal “yes/no” members of his “enigmatic” group, but on the members he otherwise depended on to be presidentialist: Fisher Ames and John Vining.

Prakash’s relies on Ames and Vining and their mix of both kinds of arguments as representative of the pivotal yes/no/yes bloc. But they were yes/yes/yes presidentialist voters: Voting yes on both of Madison’s proposals. See 1 Annals 604, 607. Thus, when Prakash relies on their mixed arguments for evidence of more presidentialism, he was unwittingly pointing to the opposite conclusion: Madison’s yes/yes/yes voters were not as clearly presidentialist as Prakash claimed. Maybe some of them were just voting strategically — for a more ambiguous text that was more likely to get through a reluctant and skeptical Senate.

            Prakash brings in Ames’s description of the pivotal faction again without reminding the reader of Ames’s potentially self-serving spin. As a “presidentialist,” Ames had reason to describe some members as agreeing with his interpretation, but disagreeing on tactics.

On the one hand, Prakash’s description of Ames’s letter is more accurate than his description of Muhlenberg’s; Ames does offer some explanations for why the “yes/no/yes” voters may have been presidentialists who voted no because they preferred to keep the clear “removable” statement or they preferred a back-up. And Prakash also correctly recounts that Ames spoke positively about both theories and had mixed views: “Ames declared that he was satisfied that the President could exercise the removal power, ‘either by the Constitution or the authority of an act. The arguments in favor of the former fall short of full proof, but in my mind they greatly preponderate.’” Prakash at 1058, quoting Letter from Fisher Ames to George R. Minot (June 23, 1789), in 16 DHFFC (Correspondence) at 840, 840-41. Then Prakash wrote: “Ames’s comments suggest that some who voted against Benson’s second amendment not only believed that the original bill language was a better declaration of executive-power principles, but also that, should the executive-power theory prove to be wrong, the original bill could also be read as a delegation of removal power. Ames’s comments raise the possibility that some Representatives might have favored both the executive-power and the legislative-delegation theories, but ultimately opted for the former on the final vote.”

Prakash failed to tell the readers that Ames voted YES on both proposals. He was not a member of what he calls the “enigmatic” faction, but in Prakash’s ostensible “executive-power” presidentialist faction. Ames’s earlier comments may have described such voters, and his summary may be fair if he was referring only to Ames’s description of other members. However, it was misleading to suggest that Ames’s comments about his own vote and mixed views might illuminate the thinking of the “enigmatic” faction. Here, Prakash should have clarified his explanation and then conceded that Ames’s “yes/yes” vote was not as clearly presidentialist as one might have assumed.

In a confusing paragraph, it seems Prakash is presenting all of Ames’s views to explain the middle “no” vote, that the ostensibly “enigmatic” faction may have believed a mix of both theories. But because Ames was a yes/yes/yes voter, this letter should cut the opposite way: If Ames had mixed views and had doubts while being a leader of this bloc, perhaps some yes/yes/yes voters were a lot less “presidentialist” than the unitary theorists have assumed. This was a misleading use of Ames’s letter.

Prakash made the same mistake again with John Vining. Prakash suggests of the yes/no/yes “enigmatic” voters: “[S]ome Representatives may have favored both the executive-power theory and the congressional-delegation theory.”Prakash at 1048. But then he cites Vining as an example representative of the “enigmatic” faction’s openness to presidentialism. Vining indeed endorsed both theories: “If the constitution does not prohibit the exercise of this power, I conceive it to be granted either as incidental to the executive department, or under that clause which gives to congress all powers necessary and proper to carry the constitution into effect.” The Congressional Register (June 17, 1789), in 11 DHFFC 939. Like Ames, Vining was a yes/yes/yes “presidentialist.” Thus, Prakash’s example undermines his point: Ames and Vining illustrate that the “presidentialists” were ambivalent or had a mix of views.

Again, if Ames and Vining were open to both interpretations, it seems less likely than Prakash assumes that they were voting “yes/yes” on Madison’s proposals as a clear endorsement of a constitutional interpretation, and more plausible that they and others were voting for strategic ambiguity to get the bill through the Senate — which Vining hinted at during his speech in favor of voting for Madison’s more ambiguous clause:

“[H]e thought it more likely to obtain the acquiescence of the senate on a point of legislative construction on the constitution, than to a positive relinquishment of a power which they might otherwise think themselves in some degree intitled to.” 11 DHFFC 1035-36.

How many other yes/yes/yes voters were not really presidentialists, but were merely good vote-counters and understood the advantage of strategic ambiguity?

            It is also important to recall that Madison also had mixed views over time, and he sounded like a congressionalist/departmentalist in some of his mid-June speeches. Perhaps many of these representatives had strong views that presidents should have the power but did not have strong views about which constitutional theory was right. If some yes/yes/yes voters had mixed views about the basis for removal (sharing both presidential and congressional interpretations), it seems odd that they would risk re-opening the debate to a new vote on Monday after already prevailing on their bottom line, the “removable” text, on the previous Friday, and even more odd that they would put forward a more ambiguous text. This oddity can be explained by the “strategic ambiguity” theory. Instead of resolving a constitutional theory, they were really pursuing a legislative strategy with the Senate in mind: using a more ambiguous clause not because it hinted at Article II, but because ambiguity was more likely to win “the acquiescence” of a skeptical or opposed Senate.

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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