“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 remind the reader that Muhlenberg was a yes/yes/yes presidentialist himself, and thus might not be the most reliable and neutral observer. Second, his letter offers more of a congressional interpretation:

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

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


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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