Originalism and the Seila Law Brief, Part III: Blame it on the brief’s word limits?

The unitary executive theorists are compounding their old errors with new errors and bad excuses: We misquoted Blackstone because the amicus brief had word limits. (Nevermind that the same misquotation appeared three times in law review articles).

These unitary executive theorists together have misused historical sources repeatedly in their Supreme Court amicus brief, articles, and books. Their theory of unchecked presidential powers relies on three sources for their ostensibly originalist argument: The Executive Vesting Clause, the Take Clause, and the Decision of 1789.

I have identified a remarkable number of serious errors in their interpretation of all three. Beyond Blackstone, some of the most serious examples are 1) a series of misuses of debates and letters from the First Congress; 2) misinterpreting Madison’s 1789 comptroller proposal; 3) errors claiming removal was a royal prerogative (plus the remarkably unsourced claim that the Take Care clause came from the royal prerogative); and 4) the misuse of secondary sources. So far, only two of the seven amicus co-authors have responded (Mike Ramsey and Ilan Wurman), and they have chosen to defend only the narrow terrain of one set of errors: their misquoting and misinterpretation of Blackstone to suggest that “removal” was a general royal prerogative or royal power, and thus it is implied by the phrase “executive power.” To their credit, at least they are conceding some errors (on confusing “disposal” for removal). So far, four months after sending them a letter detailing most of the serious errors, the other co-authors Steve Calabresi (a Federalist Society co-founder), former 10th Circuit judge Michael McConnell, Mike Rappaport, Sai Prakash, and Jeremy Rabkin have remained silent.

The evidence that Wurman and Ramsey have offered to support their brief and articles actually confirms the opposite of their claims and adds to my critique that they misunderstood and misused Blackstone. Their failure to support their interpretation makes it even more troubling that their main excuse for misquoting Blackstone or dismissiveness about it was that their misquote nevertheless more accurately reflected both Blackstone’s general view and the passage’s meaning (e.g. Ramsey: “Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant.”)

This excuse comes with a big evidentiary burden: if you’re going to offer this we-got-the-real-meaning-right defense for misquoting a major source, you better have overwhelming evidence to back you up.

And yet they still cannot point to evidence that supports their claims, they continually ignore the documentary evidence I have provided (from Blackstone and other sources), and they repeatedly quote passages that contradict their claims. Perhaps most troubling to me, they audaciously claim I haven’t “pointed to specific evidence to the contrary” (i.e., limitations on royal removal), despite the fact that I have been sharing such evidence for months. My argument is much more than Blackstone’s silence on a general removal or displacement power as a general royal prerogative or even as a general power (which by itself is still a huge problem that imposes on them a significant burden to overcome). My argument is that Blackstone provides clear evidence against a general removal power:

To recap again:

  1. Blackstone’s discussion of offices as property, an “estate… either to him and his heirs, or for life, or for a term of years, or during pleasure only.”) (2 Blackstone at *36)
  2. Blackstone’s need in Chapter 9 to specify removal conditions vs. serving at pleasure for a small number of law officers because there was no default rule.
  3. Blackstone on modern changes to Treasury, (end of chapter 8) distinguished [Jan 31: a general rule in treasury] of “at pleasure” as new and particular to modern finance and military, versus the traditional practices or prerogative (of chapter 7 and most of chapter 8), and which Blackstone discussed disapprovingly or as problematic.
  4. Edmund Burke
  5. In the same paper, I also discussed secondary sources showing widespread limits on royal removal: Aylmer, misused and miscited by Prakash; Manners/Menand; Chester. (I agree that Birk’s evidence is mixed, but it still contains many nuggets that undercut the unitary claims.)
  6. More recently, I have been examining Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown(1820), McConnell’s second most important source, and Sir Matthew Hale, The Prerogatives of the King [composed 1641–1649], cited by McConnell and the amicus. So far, I cannot find any reference to removal as a prerogative or general power, but I have found passages suggesting limits on removal throughout English history, Chitty 80-85; Hale 111-12. Some of these passages indicate life tenure offices at high-level national positions.See Hale 111-12, see also J.C. Sainty, “The Tenure of Offices in the Exchequer,” 80 English Historical Review 449-75 (July 1965) on the important offices of chancellors and chamberlains.
  7. [Feb. 1st: I also add a series of law dictionaries that confirmed Blackstone’s description of offices as a mix of inheritable, life tenured, served for a term of years, or at pleasure. See one example here. “Term of years” meant that royal removal was limited, so that the office-holder was assured the full term, as Manners and Menand showed here in 2021.]

In their responses, Wurman and Ramsey have presented evidence that does not actually support their claims, and overall, generally confirms my interpretation of Blackstone and the lack of a general royal removal power, even if we are assuming arguendo that the king’s powers are generally relevant to inferring implied powers from the phrase “executive power.”

To summarize my last post, “Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus,” one of Mike Ramsey’s responses was that Blackstone was not a major part of their brief or their argument. I explained in this post that Ramsey’s distancing was plainly incorrect: 1) they presented Blackstone as one of their two main arguments and the first five pages of their substantive argument. You can read the brief (especially the “summary of argument”) here; 2) perhaps even more troubling is that “Blackstone’s list of prerogatives” was the key to co-author Michael McConnell’s central thesis in his book to infer expansive Article II powers without engaging in royalism and “Schmittian” abuse of emergency powers. (If McConnell was indeed misreading and misusing Blackstone, the cornerstone of his book, these errors should raise some fundamental concerns about his entire book. More on this later).

Now I would like to address their other excuses and their new round of errors. In this post, I first return to the misquotation and their bad excuse:

“Blame it on the brief word limits”

Ramsey offered another plainly incorrect excuse for misquoting Blackstone: “challenging word limits.” Not only is this excuse not remotely an acceptable excuse for misquoting a source; he is also contradicted by his own blog posts. Here are two passages from Ramsey:

That said, I agree with Professor Shugerman’s criticism to this extent. In the Seila Law brief (which I signed and assisted in drafting), this key quote from Blackstone is shortened and clarified with brackets, rather than being quoted in full with a supporting explanation. On further reflection I think that was not the right way to do it; a quotation of this importance should be set out in full rather than being edited, so that the reader can draw independent conclusions. In my scholarship (including blog posts!) I try to include long block quotes from key sources for exactly this reason (often over editors’ forceful objections). A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable. But here it should have been resisted. (Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant).

Ramsey repeats the same excuse in “Reprise”: “I note, though, that Professor Shugerman makes some fair criticisms of the way the material was presented in the Seila Law brief, where it was necessarily described in somewhat abbreviated form due to space limitations.

The problem is that these misquotations are not isolated to their Seila Law brief. It also appeared in two long law review articles. In fact, Ramsey contradicted this excuse in another blog post:

In the originalist scholars’ brief in Seila Law v. CFPB and in other related originalist scholarship, this passage is read to mean that principal executive officers had no legal protection against removal from office because they are not in that capacity “the objects of our laws” and thus are wholly subject to the king’s supreme executive power.

Here is Wurman’s article “In Search of Prerogative” in the Duke Law Journal, p. 142 n. 205:

Moreover, Blackstone certainly argued that principal officers were entirely under the control of the king. See BLACKSTONE, supra note 12, at 327 (“[H]is majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like [, are not] … in that capacity in any considerable degree the objects of our laws ….”).

Wurman’s article on “The Removal Power” in the Cato Review, once at page 169, and again at p. 171 note 59: 

In a section of his Commentaries entitled “Of Subordinate Magistrates,” Blackstone described the principal officers–namely, “the lord treasurer, lord chamberlain, the principal secretaries, [and] the like”–as “his majesty’s great officers of state” and explained that these offices are not “in any considerable degree the objects of our laws.” In other words, the principal officers of state were executive, not legislative, creatures. P. 169

Blackstone, of course, argued that principal officers were entirely under the control of the king. Blackstone, supra note 16, at *327 (“the lord treasurer, lord chamberlain, the principal secretaries, [and] the like,” namely “his majesty’s great officers of state,” are not “in any considerable degree the objects of our laws”).171 n.59

Compare these quotations to the original Blackstone, which is part of the introduction to Chapter 9, “On Subordinate Magistrates”:

“And herein we are not to investigate the powers and duties of his majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial.”

I find it particularly remarkable that Wurman put these misquotations not only in the body of an article’s text, but twice in scholarly footnotes. This was no editorial choice because of a brief’s word limits. This was a repeated error of basic misinterpretation and fundamental misunderstanding of this passage.

I have already explained why there are three different reasons why it is an obvious mistake to change the meaning of the words here from “I do not know X” to “not X,” but let’s review: 1) It changed the plain meaning of Blackstone saying he “did not know;” 2) Blackstone’s passage was telling us clearly he and we “are not to investigate,” which reinforces the “I do not know” meaning; 3) he gave an additional explanation for why he did not know: They were not law officers with “magistracy.”

Wurman’s response repeats the same error by suggesting Blackstone really means, and I quote, “I can’t say for sure in every case, but I do not understand them to be subject to these laws.” Wurman is doing it again: twisting Blackstone to fit Wurman’s assumptions. He then tries to redeem the misquotation by saying that we agree that the passage refers to principal officers and their removability, which unfortunately means that Wurman is again doubling down on the same error and also re-introducing an error he makes in the brief: Blackstone did not have a category of “principal officers.” Wurman and their amicus brief have some puzzling claims and contradictions about “principal officers,” but this series of claims that Blackstone is discussing “principal officers” shows a repeated conflation of the English administrative system of a cabinet, privy council, and “principal secretaries” (department heads and secretaries of state), numbering in the teens, with “principal officers” in the U.S. Constitution, which number in the hundreds (or more, depending upon the Court’s broadening interpretations of “principal.”)

Both Wurman and Ramsey lean heavily on the claim that their interpretation of this passage is supported elsewhere, such as Blackstone saying the king has “due subordination” over “all others acting by commission” or “due subordination” over and “obedience” from “officers.” The problem is these quotes do not relate to removal: Judges “act by commission” and are “officers” in Blackstone’s usage and others’ usage. If the king has “due subordination” over those “acting by commission” and “officers,” and that includes judges, then Blackstone must not think that such royal “dominion” would include a general removal power.  I will explain in the next posts why they are wrong.

But Ramsey also adds some remarkable close readings and assertions to rescue their misquotations:

I agree with Professor Wurman [that Blackstone really meant “I can’t say for sure in every case, but I do not understand them to be subject to these laws.”], and I’ll add several points in support. First, it’s a common expression to say something like “I don’t know that that’s right” to mean in effect “I’m confident that that’s not right, at least as a general matter.”

Sure, sometimes people say in polite conversation “I don’t know that that’s right” and they mean “that’s not right.” But now we are engaged in a massive semantic re-reading and genre confusion. This is not Blackstone in conversation being polite or sarcastic. This is William Blackstone, law commentator, writing an introduction to a chapter telling us what the chapter will not be about. Moreover, when I was in graduate school, we joked about a professor who would say, in response to errant student comments, “I’m sure that’s right,” but would go on to explain why it was wrong. We all do this in conversation and teaching from time to time. But we almost always go on to explain. And sure enough, Blackstone goes on to explain… and clarifies that he meant what he said: “We are not to investigate [these other officers]… because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy [law] conferred upon them.” Why is Blackstone emphasizing law officers vs. non-law officers? Because he is writing his “Commentaries on the Laws of England.” Not Commentaries on Royal Power, not Commentaries on English Administration. This point is crucial when reading Ramsey’s second flawed excuse:

Second, Blackstone was the foremost authority on English law at the time; he was a chaired professor at Oxford who had systematically described the English constitutional system in a series of lectures that became the basis of the Commentaries, and he was, when he wrote this passage, engaged in preparing a comprehensive four volume treatise on English law. If he did not know of any legal protections for the tenure of principal executive officers, I think it fair to conclude that there weren’t any of significance.

Exactly. Blackstone was an authority on English law— Primarily traditional common law and courts. He did not claim to be writing about all of English government and administration. But here Ramsey is repeating that same basic historical error as Wurman: the anachronism of the term “principal executive officers,” which was not a thing in England, and certainly not a category used by Blackstone.

And what is Ramsey’s understanding of Blackstone and his Commentaries project? In Removal of Context, I explain that these unitary theorists fundamentally missed Blackstone’s theory of parliamentary supremacy, so they generally misused Blackstone. But here Ramsey reveals another misunderstanding of Blackstone’s project. Blackstone was not writing a comprehensive encyclopedia on every detail of English government. Here is Ruth Paley – in the modern definitive edited volume on Blackstone – describing Blackstone’s Commentaries

e.g., p192: “the Commentaries were not intended to be anything but an elementary introductory text …”

p194: “what we have in the Commentaries is an undergraduate text …”

p197: “Blackstone provided us with a thoughtful introductory guide, not an accurate and systematic analysis of eighteenth-century English law and constitutional thought …”

Wurman and Ramsey offer excuses that are either contradicted by their other blogposts, justify the misreading by confusing the genres, repeat other historical errors, reveal new errors and misunderstandings… and ultimately contradict the general originalism project:

Originalism depends upon claims of clear and stable meaning that we can find 200 years later. These unitary theorists claimed to find clear meaning with “overwhelming evidence” in their brief.

But when they are confronted with errors, they retreat to “plausible” meanings or “reading passages differently” or “multiple interpretations.” And they retreat to a position that it is permissible to offer merely “plausible” interpretations in articles and amicus briefs as a basis for striking down statutes. Even after seeing these errors and partially conceding ambiguity, they still offer conclusions like, “I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt.”

I think they have been forced to retreat from their bold overclaiming in the brief to mere claims of “plausibility” and a loose version of living constitutionalism and pluralism. But their repeated and widespread misuse of historical evidence shows that they’ve been accidental living constitutionalists and ahistorical non-originalists the whole time.

I think they’ve given up the ghost.

I’ll explain in the next posts.

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.

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