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