This post is the seventh 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%). He misreads Hartley, Cadwalader, and Laurance, and overlooks how Madison and Laurance reflect the rejection of “indefeasibility” in the unitary theory. 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. The last post showed Prakash’s misinterpretation of Muhlenberg’s letter. Prakash also cited William Smith of Maryland to suggest a presidential meeting of these votes:
“Contemporaries saw the Senate vote to retain the House’s removal language as a vindication of the executive-power position… Representative William Smith of Maryland described the Senate vote as favoring the President’s “right of removal from office as chief Majistrate [sic].”
However, this letter focused on rejecting the senatorial view, rather than endorsing the presidential theory of Article II over the congressional theory. Prakash also failed to mention Smith’s acknowledgement that the debate did not address or resolve other departments and other offices:
Letter from William Smith (Md.) to Otho H. Williams (July 27, 1789), in 16 DHFFC at 1150.
For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University of Pennsylvania L. Rev. (forthcoming 2022), at SSRN.