This post is the eighth 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 posts showed Prakash’s misinterpretation of Muhlenberg’s and Smith’s letters. This post addresses his exaggeration of a letter by Vice President John Adams.
Prakash quoted Vice President John Adams to support the same point in the paragraph on William Smith:
The Vice President himself complained that his “Vote for the Presidents [sic] Power of Removal, according to the Constitution, has raised from Hell an [sic] host of political and poetical Devils.” These accounts indicate that the removal language was generally understood to endorse the “constru[c]tion of the Constitution, which vests the power of removal in the President.”– Prakash at 1066.
The full sentence is: “My exertions for my Vote for the Presidents [sic] Power of Removal, according to the Constitution.” Letter from John Adams to John Lowell (Sept. 14, 1789), in 17 DHFFC at 1538.
For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University Pennsylvania L. Rev. (forthcoming 2022), at SSRN.