This post is the ninth 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.
My digging into the use of sources by unitary scholars on the Decision of 1789 started with going back to the House debate, and I started seeing some discrepancies and inconsistencies. The standard account is that the House debate is the only record of the legislative debate, because the Senate did not record debate. The unitary theorists’ reliance of one chamber’s legislative history has always been an irony, because their strict separation-of-powers doctrine otherwise rejects unicameralism (see, e.g., Chadha). Furthermore, strict textualists reject legislative history.
But I saw that Chief Justice Taft (in Myers in 1926) and Prakash had relied on the diary by Senator William Maclay for his record of the key Senate vote on the Foreign Affairs Bill. Myers v. United States, 272 U.S. 52, 115 n.1 (1926). See also Clinton v. Jones,520 U.S. 681 (1998); Prakash, 91 Cornell L. Rev. at 1032.
I had just begun to dig into these debates when Covid struck and shut us in our homes in March 2020. I had been reading the House debate, but then I wondered, “Did Senator Maclay’s diary have anything more on this debate?” I knew he often wrote down juicy details of life in the First Congress. I assumed I had left my copy in my (then-Covid closed) law school office, but somehow, it was in my home office shelf. For my history PhD coursework in 2000, Professor Joanne Freeman had assigned The Diary of William Maclay, which by then had become so commonly assigned in history classes that it was paperback. Freeman is interested in political culture, and no one was more interesting on Founding political culture than William Maclay. That may be why I kept the diary at home as part of “good political history reading,” and not in my faculty office. Here is my copy from her class 20 years ago:
Maclay’s diary has been cited frequently for his record on the debates over the Judiciary Act and other debates related to executive power. See Clinton v. Jones,520 U.S. 681 (1998) and articles by Charles Warren (1923), Akhil Reed Amar & Neal Kumar Katyal (1995), Tom Lee, Daniel J. Meltzer, Christopher Yoo, and Prakash’s amicus co-author and leading unitary theorist Steven G. Calabresi. See more recently Trump v. Vance, 140 S. Ct. 2412, 2435 (2020) (Thomas, J., dissenting).
Maclay had hidden his diaries, but a family member discovered them after his death. They were first published in 1890, a century after his time in the First Congress. The Documentary History of the First Federal Congress (DHFFC) series made them more widely available in 1988. It is “Volume 9” of the Documentary History of the First Federal Congress that sits in every major law library. Volume 9 includes Maclay’s diary and a detailed description of the Senate debate, as well as some notes on this debate by Vice President Adams and two other Senators, which generally corroborate Maclay’s account. Instead of turning to Maclay’s diary beyond the mere vote count, Prakash instead skipped to DHFFC’s Volume 16 for private letters. It turns out that Prakash then misinterpreted six of those letters (one by VP Adams, two by Rep. Hartley, one by Rep. Smith, one by Rep. Peter Muhlenberg, and one by Rep. Cadwalader, plus a confusing use of one by Rep. Ames) as well as misinterpreting a series of floor speeches, to push the unitary theory far beyond the historical record, as I document in my article. In these linked posts, I contrasted Prakash’s claims or partial quotations with my photos of the full letters.
The unitary theorists’ use of Senator Maclay for the vote tally but the curious absence of Maclay’s recordings of the debate raises questions about their thoroughness, their awareness of the historical materials and/or their selectiveness about those materials, and about the practice of originalism more broadly.
(Only two scholars, both of whom take the unitary view, have cited portions of the debate: Charles Thach quoted from Maclay’s notes only from the early days of the debate. Charles Thach, Jr., The Creation of the Presidency, 1775-1789, 140-41 (1923). Very recently, Akhil Amar in his 2021 book The Words That Made Us cited one speech from the debate, without providing the contrary context from the rest of the Senate debate that I have identified from Maclay).
It turns out that Senator Maclay’s account of the July 1789 debate raises serious questions about whether the meaning of the deliberately ambiguous and obscure statutory language was clear in the Senate debate — or whether it was deliberated obfuscated and whether its Senate sponsors retreated from such a meaning. It also provides more of an explanation for why the House deleted the more explicit grant of removal power to the president: Because they already knew that the Senate was pushing back on the House and Madison’s tariff/economic program (as Maclay documented) and the Senate was also resistant to giving up its power to block presidential removals. Thus, the more likely reason for the puzzling reversal-gambit by Madison and Benson on a Monday, after passing their preferred explicit language on the previous Friday, was what one of their colleagues confessed about their strategica ambiguity. John Vining, a vocal presidentialist (whom Prakash also misinterpreted), in the last floor speech before the key House vote:
“[H]e thought it more likely to obtain the acquiescence of the senate on a point of legislative construction on the constitution, than to a positive relinquishment of a power which they might otherwise think themselves in some degree intitled to.” 11 DHFFC 1035 (June 22, 1789).
It’s no wonder that Madison’s opponents mocked his gambit on the House floor as a retreat. See my paper here for a full discussion of Maclay’s diary, his record of Senate hostility to Madison’s economic agenda coinciding with the House’s Foreign Affairs debate, and strategic ambiguity in both the House and Senate to obfuscate and get their bill passed both Houses over a clear majority opposed to their theory. I posted a shorter essay on Lawfare in July 2020 with the key passages here.