Originalism and the Seila Law Brief #5: Blackstone Backfiring and a Return to Royalism

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. So far, only Ilan Wurman and Mike Ramsey have publicly addressed any of my concerns, and they have defended only the narrow question of misquoting Blackstone with inaccurate excuses. No one has addressed the serious problems with their misinterpretations of the First Congress. And with unpersuasive excuses: 

Excuse #1, blaming the misquotation on the word limits of a Supreme Court brief, was neither acceptable nor accurate, because the same misquote appeared three times in 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.”)

As I’ve noted before: 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, they haven’t offered any evidence that Blackstone recognized a general, traditional royal power of removal. Their new Blackstone citations backfire.

  1. The bottom line from the last post: Both Wurman and Ramsey point to Blackstone saying that officers owe the king “due subordination,” and they posit that 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 “offices” and over “all others acting by commission.” Judges and many other officers held “offices” and “act by commission,” and yet were not removable, according to Blackstone, their own briefs, and McConnell’s book. Their own evidence contradicts their inference from these passages. 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. 

I briefly address all of their remaining evidence in this post:

2. Judges’ “Good Behaviour” Tenure Does Not Imply Lack of Protection for Other Offices:

Ramsey’s second post and Wurman here claim that judicial tenure during good behavior (Blackstone p. 257-59) somehow implies the opposite for “executive officers.” Ramsey claims that “Blackstone’s discussion of judicial tenure strongly implies that executive officers, in contrast to judges, did not have protection against removal by the monarch.” No, it does not. All it means is that a new general rule emerged for judges as a category, but there was no general rule for other officers. They acknowledge elsewhere that other officers were protected from removal. Blackstone (and McConnell’s book) both explained that offices could be unremovable 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). I have pointed out that 18th century dictionaries and other sources confirm that these protected offices were widespread, and some of these passages indicate life tenure offices at high level national positions.See Hale 111-12, see also JC Sainty, “The Tenure of Offices in the Exchequer,” 80 English Historical Review 449-75 (July 1965). See also Aylmer here.

 In fact, their next argument contradicts the above claim:

3. Subordinate officers don’t show what they claim:

Ramsey’s post #3 is titled “Blackstone on Subordinate Magistrates,” but there isn’t much new here, just repeating earlier inferential leaps. And I already addressed his point here. Ramsey notes 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, Blackstone had to specify removal rules case-by-case because there was no general rule. On a very limited list of four law officers, Blackstone describes a mix of tenure at pleasure and more protected tenure.

Ramsey’s summary of chapters 7 and 9 conveniently skipped chapter 8, which I have highlighted as evidence against removal as a traditional power here. See Chapter 8 (1 Blackstone 334-36), distinguishing the recent shift to “at pleasure” Treasury offices from traditional prerogative powers, with misgivings or doubts about these novel reforms (regretting that they are due to “unaccountable want of foresight, established this system in [the] stead” of traditional powers.”)

Ramsey’s final post (#4) returns to chapter 9 to discuss how Blackstone specified removal for four local officers: two removable at pleasure by the king (justices of the peace and sheriffs), one removable only for good cause (coroners), and one with removal only by local bodies (constables). It also does not add anything new to support their claims.

4. Was a principal officer synonymous with “department head”? If so, why did they file this brief?

Their brief claims that “principal officers” were the equivalent of “department heads.” It would seem that this stance would undermine their brief and contradict some of co-authors’ own writings. Wouldn’t the head of the CFPB be an inferior officer under this interpretation? And Supreme Court precedent and their own writing recognizes that inferior officers can be protected from removal. See Perkins and McConnell, The President Who Would Not Be King p. 165 (recognizing protections for civil service and “lower-level officers”). Why did they joined a brief against what they think is an inferior office? Do they really think the precedents are wrong, and they would abolish civil service protections? This brief is extreme in its claims, and extremely wrong in its use of historical material.

In some replies, Wurman makes some surprising clarifications. He has retreated to claiming that his reading is simply “plausible,” which is a far cry from the brief’s overclaiming of “the overwhelming weight of the evidence” (p. 7) and  “unquestionably” that the king could remove “principal executive officers” (even though that category did not exist in Blackstone). Sorry, I did not think originalists believed that merely “plausible” readings were acceptable in constitutional interpretation. They still have not acknowledged the inappropriate chutzpah of writing in an amicus brief that our historical argument in “Faithful Execution and Article II” was “simply a disagreement with the Constitution.” (p. 17).

Wurman also claims that I “fundamentally misunderstand [their] argument. Of course we know about the Act of Settlement. Parliament is supreme and can restrict *any* royal power. But it had to enact removal restrictions *because* otherwise the king had a removal power.”

What evidence is there for this claim? It is unsourced. Blackstone suggested no default rule. The removal conditions were worked out between king and Parliament over time. In the English system throughout the middle ages and the early modern era, many offices were removable, many were not. “Removal” was not a royal prerogative or a general rule.

But most alarming, this is where Ramsey, Wurman, and their brief have devolved into royalism, rather than republicanism, even though McConnell fundamentally rejected this approach (relying on whatever a king could claim, rather than the Founders’ unbundling of the list of prerogatives) in his book as authoritarian cherry-picking, as “Schmittian” exceptionalist emergency power.  McConnell’s book rejected such simplistic claims translating the English Crown into the presidency– in fact, that’s the point of his own title, “A President Who Would Not Be King,” and it’s the point of his introduction and entire thesis.

So why did McConnell sign a royalist brief that contradicted his own ostensibly anti-royalist book? Perhaps one reason is that McConnell’s book turns out to be more royalist than republican, and it has serious problems with historical support for its core claims. Both the brief and McConnell’s book are inconsistent and incorrect in their approach to Blackstone, the role of English history, and the Founding. If both the brief and the book are ungrounded in the historical sources and in historical methodology for their central arguments, they are not originalism. They both are erroneous royalism.

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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