“The Indecisions of 1789”: The Curious Absence of Senator Maclay’s Diary (Part IX)

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.

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.. I posted a shorter essay on Lawfare in July 2020 with the key passages here.

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.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: