“The Indecisions of 1789”: Prakash’s Misuse of Peter Muhlenberg (Part VI)


This post is the sixth 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 is mistakenly claiming statements show mixed views or ambivalence by a pivotal bloc of members that some call “congressionalist” but Prakash called “enigmatic.” These members were actually part of the bloc Prakash assumed to be presidentialist, so this argument backfires by showing that the “presidentialist” members were actually more ambivalent themselves, and perhaps they voted strategically.

A third set of problems comes from misreading letters as descriptions of the House debate, exaggerating their description as more presidentialist.

Prakash over-reads a letter from Rep. Peter Muhlenberg to Dr. Benjamin Rush claiming a majority of the House subscribed to presidentialism. He first quotes Muhlenberg:

Though a ‘Considerable Majority of The House have determined that the power of removal is vested solely in The President as The Chief Executive Magistrate,’ this majority was divided. According to Muhlenberg, one group thought it was the “duty of the Legislature to declare by Law where this power is Lodgd, in order to prevent Confusion hereafter.” Presumably, these were the executive-power partisans who voted to reject Benson’s second amendment.[1]

– Prakash at 1058

First, Prakash does not tell the reader that Muhlenberg was a yes/yes/yes presidentialist himself, and thus might not be the most reliable and neutral observer, even if Prakash were right about the contents of Muhlenberg’s letter. Muhlenberg may be affected by confirmation bias, selectively perceiving some “yes/no/yes” faction as sharing the same constitutional interpretation, and he may have reason to spin this account as a validation of presidentialism to other political figures elsewhere (like Dr. Benjamin Rush, a signer of the Declaration of Independence and surgeon general of Washington’s Continental Army).

Second, when one reads Muhlenberg’s entire letter, it is more consistent with a congressional interpretation. Compare Prakash vs. what Muhlenberg actually wrote: Prakash posits that Muhlenberg described both camps as presidentialist, but then divided on how clear or implicit to make the text. But Muhlenberg’s letter (below) clearly distinguished a congressional (yellow) vs. a presidentialist (orange) camp. Note that Muhlenberg was clearly describing a presidential camp as “a fair construction of the Constitution, The power of removal is vested in The President,” and the rest of the paragraph elaborated on implied executive powers and the formal and strict separation of powers. By contrast and in this clear context, the other “part” was more clearly congressionalist:

-Letter from Peter Muhlenberg to Benjamin Rush (June 25, 1789), in 16 DHFFC (Correspondence), at 856.

One part of the letter seems to suggest that the pivotal yes/no/yes faction agreed with the presidentialists on “vesting” and merely disagreed about whether to declare or imply the power. Prakash could have been reading too much into the word “vested.” The Constitution has a vesting clause, but vesting is not limited to a constitutional source of power; both in the 1780s and now, Americans have regularly used “vest” to describe legislative assignments of power.[2] The congressionalists would also “vest” power in the president, but through legislation rather than constitutional interpretation of Article II. Moreover, Muhlenberg’s reference to “the duty of the Legislature” to “declare” the power could be a duty of Congress to clarify a delegation and establish a policy, rather than a duty to interpret Article II. This “duty” would be consistent with congressionalism, rather than a permanent unitary/presidentialist position. Muhlenberg could have used the phrase “vesting somewhere” to mean that this group thought the Constitution vested in Congress the power to delegate, and Congress would then vest by statute in the president.

            Muhlenberg then gave a relatively clear contrast with the other camp’s principles: more explicit and formal about the separation of powers. He wrote that powers should “allways remain seperate in every free Country” [sic]; specific and sophisticated about the constitutional vesting of executive powers (some explicitly in the Senate, some explicitly in the president, but “residuary” powers were implicitly vested in the president). Why would Muhlenberg go into such detail about how this second camp (the “yes/yes/yes” followers of Madison and Benson) believed in the principles of separation of powers and the “residuary powers” of the president if it were shared by both camps? The best reading of this letter is that Muhlenberg’s first reference to vesting was imprecise or too general, but the next paragraph was much more detailed and clear about  differences in principles that is more consistent with the first camp as “congressionalist” (“the duty of the legislature to declare by Law where the power is Lodgd”) and a second camp as “presidentialist” (Article I and Article II separate executive powers, but “residuary powers” are vested in the president.[3] Prakash quoted from the more confusing part of the letter, a fragment that could be read either way, but he did not acknowledge that the rest of letter clarified Muhlenberg’s points and undercut his argument.

            Moreover, Peter Muhlenberg could be forgiven for writing inconsistently and using words like “vest” imprecisely. He was not a lawyer, but a minister and Revolutionary War hero. His brother Frederick was Speaker of the House, but Peter was not engaged in this debate, nor was he engaged in any debates. The Annals of Congress records Peter giving just one short comment (summarized in two short sentences) on imports in April 1789, and he does not appear again on the House floor.[4] He also seems to have missed many votes. Why is Prakash straining to read one confusing letter this way, when the House floor debates are clear? If Prakash wants to show a “considerable majority” for presidentialism, it would have made more sense to count the House member-by-member (as this Article does) rather than rely on a seemingly biased and confusing description by a presidentialist.

[1] Prakash at 1058, quoting Letter from Peter Muhlenberg to Benjamin Rush (June 25, 1789), in 16 DHFFC (Correspondence), at 856.

[2] See “Vesting,” Stanford L. Rev. forthcoming 2022. Even in Seila Law and Collins, Justices use “vest” to describe a legislative delegation of power.

[4] 1 Annals 139 (April 1789).

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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