Originalism and the Seila Law Brief #4: Confusion About Symbolic “Subordination,” “Executive Power,” and “Offices”

In their Supreme Court amicus brief in Seila Law v. CFPB, seven prominent originalist scholars misquoted and misused Blackstone, in addition to misusing a remarkable number of Founding-era sources. While the case was still pending two years ago, I contacted one of the authors, Sai Prakash, with polite questions about my concerns relating to his use of Founding Era sources. He has not responded to my questions. In October, as I discovered the misquotations and other serious historical errors in every section of the Seila Law brief, I privately wrote to the six other co-authors: Steve Calabresi (a Federalist Society co-founder), former 10th Circuit judge Michael McConnell, Sai Prakash, Jeremy Rabkin, Mike Ramsey, Michael Rappaport, and Ilan Wurman.   So far, only Ilan Wurman and Mike Ramsey have publicly addressed any of my concerns. I appreciate their willingness to respond, but they continue to defend only the narrow territory on misusing Blackstone, and not their many other errors and misuses. Perhaps most troubling is that their new responses only confirm their misunderstandings of Blackstone, and they even introduce a new misquote (or at least a new example of inserting words into a Blackstone quote in a misleading way).

They have offered two main excuses for the original misquote in their brief: 

Excuse #1: “A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable… it was necessarily described in somewhat abbreviated form due to space limitations.” This is neither a valid excuse – all briefs have word limits, and the accuracy standards for Supreme Court amicus briefs should be higher – nor does it explain (as I explained in the previous post) why the same misquote also appeared three times in a co-author’s long law review articles). 

Excuse #2: Their misquote nevertheless more accurately reflected both Blackstone’s general view and the passage’s meaning (e.g., Ramsey writes: “Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant.”)

If you’re going to misquote major historical sources in an originalist Supreme Court brief – and then offer a defense of but-we-got-the-right-meaning-anyway, you better have overwhelming evidence to back you up. Unfortunately, the unitary executive scholars have not offered evidence to validate their misquotation. The evidence they have subsequently offered fails again to address their old errors, but instead introduces new errors and even a new misquotation/misleading alteration. Their new Blackstone citations backfire.

I am operating under the assumption that we are all trying to get the law and the history right, that we are all acting in good faith, and that errors in briefs are a serious matter that should be acknowledged. I tried for quite a while to privately and politely share these concerns so that we could avoid this unpleasant public spectacle of what must seem to be fussily fighting over footnotes. But in historical work, the footnotes are everything.

It was disheartening, after sharing a detailed letter and a draft paper, to read on a blog, “Jed so far hasn’t pointed to specific evidence to the contrary.”      My specific evidence was presented in my letter, this paper, and then repeated in these blogposts here and here. Now let’s turn to the evidence Wurman and Ramsey have offered in response. 

Here is a summary of how their evidence shows the opposite:

  1. The bottom line in this post: Both Wurman and Ramsey point to Blackstone’s passages suggesting that officers owe the king “due subordination,” and even if Blackstone never mentions removal power, “subordination” implies removal. Unfortunately, their passages show that the king’s authority did not imply removal.  Blackstone referred to the king’s authority over “all others acting by commission” or “offices,” and their own briefs and books contradict their inference. Judges and many other officers held “offices” and “act by commission,” and yet were not removable. Blackstone’s reference to “subordination” to the king was more about the symbolism in a limited monarchy, and Wurman and Blackstone again misunderstand Blackstone’s fundamental structure of limited monarchy, parliamentary supremacy, and the English rule of law, not of the Crown. 

In the next posts:

  1. They both claim that Blackstone’s discussion of judges as independent and protected from removal implies that, as a rule, other officers were not protected. Unfortunately, this claim is a leap, not logic. Their own evidence contradicts their assumption: Judges had a general rule of good behavior, but many other subordinate officers also were protected from royal removal at pleasure (see next):
  2. They point out that some subordinate officers were removable at pleasure, but others were protected from removal. It is still not clear why they think this evidence supports their claim. Instead, it is a limited description of four law officers, showing there was no general rule, but rather, a mix of tenure at pleasure and more protected tenure.
  3. Their claims that “principal officers” was the equivalent of “department heads” contradict some of co-authors’ own writings, raising questions as to why they think their unitary theory applies to inferior officers and as to why they joined a brief against what they think is an inferior office.
  1. “Due Subordination” as Symbolic, and Not a Removal Power:

Both Wurman and Ramsey point to Blackstone’s passages suggesting that officers owe the king “due subordination,” and even if Blackstone never mentions removal power, “subordination” implies removal. Unfortunately, their passages show that the king’s authority did not imply removal.  

Ramsey and Wurman acknowledge that they can’t find any Blackstone passages explicitly referring to a general removal power. That is already a serious problem for them to justify their misquotations. Having backed themselves into a tough situation, I think Ramsey and Wurman reached out for passages more about the Crown’s symbolic power in a monarchy, passages that would prove far too much in a limited monarchy if we are supposed to take them literally as establishing the king’s absolute power over officers, especially when Blackstone is far more clear about England’s fundamental structure of parliamentary sovereignty and supremacy.  

(1) These passages apply to judges and unremovable offices (inheritable, life or “term of years,” a guaranteed property status acknowledged in McConnell’s book), which tells us that they do not imply removal or control; 

(2) This lack of practical implications confirms that these passages should be read as Blackstone’s view of royal “subordination” as symbolic in a limited monarchy, not a general practical power.

Blackstone on “Subordination” #1:

Ramsey offers this passage as one example (emphasis added):

The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from the wherein he is stiled the fountain of justice; for here he is really the parent of them. It is impossible that a government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions…

From the same principle also arises the prerogative of erecting and disposing of offices: for offices and honors are in their nature convertible and synonymous. All offices under the crown carry in the eye of the law and honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those what are most able to execute them. (1 Blackstone 261-262)

Ramsey claims: “These passages … continue to speak of these specific powers as unified in the king: the king has all the power of prosecution, all the power of issuing proclamations, and all the power over offices.”  He concludes: “Thus these passages strongly imply – without saying in so many words – that the monarch had power of removal.” 

But judgeships are offices, and judges were officers. Judges (and other examples of officers) were not removable. Thus, Blackstone did not mean that the king’s “superiority” and “subordination” implied removal or practical control.

Their own brief contradicts their assumptions about “offices.” Here is one such a reference on p. 9: “Removal restrictions existed only for officers exercising judicial or ministerial functions, Act of Settlement, 12 & 13 Wm. 3. c. 2 (judges in Britain).” Their brief and responses turns to four categories subordinate “officers,” two of which were not removable at pleasure by the Crown: coroners as a “officers” (see their own brief at p. 9) and constables (see Ramey’s blog response #4). Both Blackstone and the U.S. Constitution also contained such references:

Blackstone: Neither can any judicial office be granted in reversion.” And “justices of the court of King’s Bench, (by virtue of their offices)…” 1 Blackstone 350.

The Appointments Clause (Article II, Section 2, cl. 2) : [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States

Another passage in their brief (also at p. 9) acknowledges that Blackstone described judges as part of the “executive power” (and thus would show that “executive power” did not include removal).

“Other parts of Blackstone likewise indicate that the power to appoint, control, and remove officers was part of ‘the executive power.‘ Blackstone wrote that the king had a right to erect a particular kind of office—courts—because it was ‘impossible’ for the king to exercise ‘the whole executive power of the laws’ on his own. Blackstone *257.” Seila Law amicus at p. 9 (emphasis added)

This passage contains a remarkable contradiction: The king created [unremovable]  judicial offices to help exercise the “executive power,” which indicates that the executive power includes a power to remove? This sentence shows the opposite. The king had a power to create offices, many of which (judges and many others) had restrictions against royal removal power. It’s not just my evidence that contradicts their brief. Their own brief contradicts their brief.

Here is a screenshot of the rest of this page from Blackstone, repeatedly describing judges as part of the “executive power,” illustrating that in the English system of checks and balances, judges may have had a more general rule of “good behavior tenure,” but they were still considered part of the executive power. And as Blackstone, McConnell’s book, and their own brief all acknowledge, contradicting their own brief, judges were not unique in not being removable; many “executive officers” also were not removable, because there was no prerogative or general rule of a removal power.

2. Blackstone on Subordination, Passage #2

Here is a second passage that both Wurman and Ramsey cite:

Wurman: “Jed argues that this is not evidence of a removal power, but rather Blackstone is expressing uncertainty given his use of the phrase “I do not know.” Perhaps that’s right, but I read the passage differently. Blackstone seems to be saying, “I can’t say for sure in every case, but I do not understand them to be subject to these laws.” That would be consistent with earlier passages in which Blackstone wrote about the importance of unity in the executive and hence “all other [magistrates] act[] by commission from, and in due subordination to” the monarch; it would also be consistent with Blackstone’s need to specify the exception for judges, who are “nominated indeed, but not removeable at pleasure, by the crown.” Still, I grant that it’s possible to interpret the passage differently.

In defending his repeated misquoting and misuse of sources, Wurman once again changed a quotation. Blackstone originally wrote “all others acting by commission.” The king was not a magistrate “acting by commission,” so “others” was not a word Blackstone would have been using to distinguish “the king” as a commissioned magistrate from “all other [magistrates] acting by commission.” A more common-sense reading is that Blackstone was saying “all officers acting by commission.” This is yet another example of Wurman changing a quotation to fit his assumptions and defend his mistaken position. And even if he were right, the passage still does not imply a removal power, as I explain below.

To Ramsey’s credit, he provides the full quotation (with the disputed/changed sentence underlined):

We are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is widely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than exigencies of state will afford. The king of England is therefore not only the chief, but properly the sole, magistrate of the nation: all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the antient magistracy of the commonwealth were concentrated in the new emperor… (pp. 242-43.)

The problem is that Ramsey returned to the same conclusion:  “Although it doesn’t say anything directly about removal power, it strongly implies that the king had complete control over executive officers.”

First, Ramsey and Wurman both overlook that Blackstone stated that traditionally, some officers nevertheless were not removable (the “heritable,” “life” and guaranteed “term of years” offices), which McConnell’s book acknowledged. Their brief and blogposts acknowledge that coroners and constables are also officers acting by commission, and yet were not removable by the king.

Even if magistrates referred only to our more modern category of executive officers, there was no tradition that the king still could not remove all such officers. 

Second, even if, arguendo, we assume that Wurman is correct that Blackstone implied “all other magistrates,” it is not clear that Blackstone meant “magistrate” to refer to a modern category of executive officers, and all other government officials with legal authority (which would include judges). Blackstone used “magistrate” in a much broader sense in terms of legal authority. See intro to Chapter 2 (“supreme magistrates” were the king and Parliament, “in whom the sovereignty of the state resides; others are subordinate…”), or frequent references to “chief executive magistrate” or “executive magistrate,” implying other kinds of non-executive magistrates. Chapter 9 focuses on “principal subordinate magistrates,” including justices of the peace, but not judges; but even then, Blackstone discusses the lord chancellor and King’s Bench on an undifferentiated list with other more “executive” officers in a modern sense (e.g., lord treasurer, lord high constable, master of the rolls) all as similar to the justices of the peace as “general conservators of the peace.” (349). It seems all would be considered magistrates, or at least it seems Blackstone did not view judges as fundamentally different from other officers in terms of magistracy.  

Third, Blackstone was referring to “offices” and “all others under commission,” those categories included judges.  Did Blackstone or 18th century legal thinkers sharply distinguish English executive officers from judges? Ramsey and Wurman assume so, but apparently because they are reading through 21st century assumptions and modern separation-of-powers categories, as opposed to reading Blackstone as an English historical document. Perhaps the strangest part of this debate is that their own brief quotes Blackstone passages that show he considered judges to be “executive” or an extension of the executive power. When Blackstone distinguished “three distinct powers in mechanics” of checks and balances, he was referring to the King, Commons (the “people”), and the House of Lords (“nobility”), not a separate judicial branch. Blackstone at 155.  Overall, Blackstone included judges as part of the executive power of law enforcement, which should not be especially surprising, given English history and the role of judges in enforcement.

Judges acted “by commission” according to Blackstone citing the Act of Settlement of 1700 itself:

Blackstone: “And, in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by tho statute 13 W. III. c. 2 [the Act of Settlement] that their commissions shall be made (not as formerly, durante bene placito, but) quamdiu bene se gesserint and their salaries ascertained and established.”

Act of Settlement: “That after the said limitation shall take effect as aforesaid, judges commissions be made quamdiu se bene gesserint [during good behavior], and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.”

The king could not remove judges. Thus “due subordination” did not imply removal. “Due subordination” seems to mean simply that these were “subordinate” officers, as Blackstone described everyone below the king as “subordinate.” 

Ramsey added two other Blackstone passages – one about prosecution (258-59) and another about the king as “fountain of justice” and proclamations (262) – neither of which said a thing about removal, nor implied removal. I think this is a tell about how little evidence – weak or strong – they have to support their inferences and assumptions.

It is odd that they did not pause in reading or writing these parts of the brief and ask if they may have been confused about Blackstone. It is clear from their own brief that the king could not remove all officers (because they know “officers” and “commissions” included judges). Even if we anachronistically exclude judges, they also know that the king could not remove all “executive” officers. And even if our modern word “magistrate” as narrow meaning, they reveal their modernist ahistorical assumptions in another misquote by plugging in “magistrate” as if it would resolve the ambiguities in their favor. And again, they show a lack of understanding of Blackstone as a commentator on limited monarchy, and his use of “subordination” was more symbolic. They can’t find a general removal rule in Blackstone, so they continue to misread Blackstone, further demonstrating their misunderstanding of Blackstone.

Next: Their argument that Blackstone listed some officers with protections from removal and others who could be removed at pleasure does not suggest that there was a general rule either way. As Blackstone and McConnell’s book acknowledge, the king and Parliament had traditional flexibility to protect offices or not.

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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