The Indecisions of 1789: Appendices on the Misuse of Historical Sources in Unitary Executive Theory

SSRN link here.

I suggest a name for a common unreliable, error-prone, often misleading originalist method:

“Ctrl-F Originalism”

Control-F is the search function. Just search for the word you hope to find, then copy-and-paste the passage without sufficient context. For constitutional law these days, that passes for “historical evidence.”

These appendices tracking the use and misuse of sources by the unitary executive theory are for “The Indecisions of 1789: Strategic Ambiguity and Inconstant Originalism,” U. PA. L. REV. (forthcoming March 2023), and they also serve as references for “Why Article II Did Not Include Removal.”

Appendix A: Misuses in “New Light on the Decision of 1789” (2006)
*Misused Sources on Events May-June 1789
*Misused Sources on Events July-Sept. 1789
Appendix B: New Errors in “Removal Revisited” (forthcoming Harvard Law Review 2023) (Submitted manuscript, spring 2022)
Appendix C: Repeated Errors from 2006 in “Removal Revisited” (2022)
Appendix D: Misuses in Other Publications (Imperial from the Beginning)
Tables on First Congress by Votes and Interpretations


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: Logo

You are commenting using your 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: