“The Indecisions of 1789”: Prakash’s Misuse of William Smith of Maryland (Part VII).

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].”[1]

However, this letter more specifically sought to reject the senatorial view, not necessarily distinguishing between the presidential theory of Article II or the congressional theory of delegation, and Prakash left out Smith’s caveat that the debate was not decisive for all the departments:

“The Presidents power of removall from Office they were equally divided on the question, when it was determined by the Vice President in favor of the Presidents right of removal from office as Chief Majistrate, without the consent of advice of the senate; this determination took place on the passing the bill for establishing the department for foreign affairs, whether or not the debate will be renewed when the other bills of a Similar nature are before that house time must Show.”Letter from William Smith (Md.) to Otho H. Williams (July 27, 1789), in 16 DHFFC at 1150.

There are hints, but only hints here. Smith was a merchant, not a lawyer, so one should be careful of trying to read too much into his imprecise phrasing as implying constutional significance. The reference to a “president’s right” could be a constitutionally based right, but it could also be a legislatively delegated “right.” The phrase “Chief Majistrate” does not refer to any constitutional text. A president’s administrative role as chief magistrate could be a reason for a congressionalist to choose to delegate the power. Smith was only explicit about rejecting the senatorial view, and (in another kind of expressio unius) he conspicuously does not address the congressional view, implying no focus on that view.

But it is crucial to acknowledge Smith’s note at the end: “…this determination took place on the passing the bill for establishing the department for foreign affairs, whether or not the debate will be renewed when the other bills of a Similar nature are before that house time must Show.” If Smith thought this debate resolved a fundamental interpretation of Article II, then he would have been less likely to think the debate would be “renewed.” But if he thought the House was focused on the appropriateness for foreign affairs, then it seems more likely he perceived the vote was case-by-case, department-by-department, and still a question of congressional discretion. The letter is not clear, but on balance, it points to a congressional or unclear resolution.


[1] Prakash at 1066.

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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