I started digging into “the Founders’ bookshelf” and 18th century English dictionaries to see if originalists’ assumptions and intutions about the words and phrases in the Constitution were correct. As I will explain, as I have been investigating the originalists’ arguments for the “unitary executive theory” and unchecked presidential powers as an interpretation of Article II. Most of the other pillars of the theory have been debunked (I am just one of many scholars showing that these historical claims are wrong and are based on repeatedly taking historical sources out of context). Unitary theorists have repeated the same errors trying to rescue the Decision of 1789 (see here) and indefeasibility (see here), but they now retreat to English royalist practice and a “British Backdrop” about implied “executive powers” and a default rule of removal at will.
That’s why English legal treatises and dictionaries matter. It’s an example of Heads I Win, Tails You Lose originalism (when is English administration a model? Or an anti-model? Apparently when it supports the desired originalist outcome). But even if we accept that English administration and royal practice are relevant, it turns out that English sources never list removal as a royal prerogative power (contrary to the originalists’ recent assertions!), and it also turns out that English sources almost never mention removal as a royal practice…
Almost never. Out of roughly 40 dictionaries and major treatises, I found a few exceptions, like Giles Jacob.
I put together a chart of these sources in this paper, now titled “Venality and Functionality A Strange Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power.”
I’ve been presenting this research since February 2023. I posted this paper in July 2023 as “Freehold Offices vs. Despotic Despotism.” And I summarized it (and other scholars’ fact-checking the unitary theorists’ errors) in this amicus brief in SEC v. Jarkesy in Sept. 23 here.
But now some unitary executive scholarship has used my research to cherry-pick this isolated example of Giles Jacob, treating it as a representative example — contradicting my research findings that it was an outlier. They also take the passage out of its own limited context; and it turns out that Jacob’s citations to legal authorities for the full passage do not actually support the claim about removal power of “great officers.” (And it turns out that these articles quote Jacob initially without acknowledging at all that the passage came from my research and presentation; and then, after emails were sent and complaints were registered, a footnote mentions my name but no citation to the article that gives the broader context and that contradicts the claim of Jacob as representative.
This is why I have started calling Giles Jacob “Jacob the Outlier.”
(Fans of Robin Williams’s lesser known movies will get the reference?)
First, some background and appreciation of others’ work: John Mikhail and Julian Mortenson thoroughly canvassed these many sources to investigate the meanings of “emoluments” and “executive power.” I had the honor to work with Mikhail on a series of historical amicus briefs on the meaning of the emoluments clauses in litigation against President Trump. I have learned more than I can summarize here from Mortenson’s resourcefulness, methods, and tireless research. Their work was my entry point to the helpful but time-consuming work digging through dozens and dozens of old English legal sources. With co-authors Andrew Kent and Ethan Leib, we investigated “faithful execution,” and we found that this phrase reflected a long legal tradition of limiting discretion and imposing duties. Thus, many originalists had misinterpreted or exaggerated the Take Care clause as giving presidents incongruous amounts of unchecked power, given that the clause primarily imposed duties. Then I investigated the term “Vesting” by digging into almost 100 dictionaries from about 1600 to 1840 — which I could do during Covid because they were available on HeinOnline, Google Books, LEME, and the University of Toronto’s database on dictionaries.
Now here’s my amicus brief’s summary:
In my draft article Freehold Offices vs. “Despotic Displacement,” I canvassed the searchable “Founders’ Bookshelf,” (see below for references) the sources other scholars had identified as the Framers’ main sourceson English or European law, and I found nothing in those sources that identified removal as a royal “prerogative” power or even a general or default royal power. I then searched additional legal dictionaries and law reference books of the era, and I again found no references to royal removal powers—except for Giles Jacob. Jacob was an outlier, the sole exception I or any other researcher have found in the sources available to the Founders. Though his work was influential, it did not compare to Coke, Hale, the two Bacons, or Blackstone, none of which asserted such a proposition. Wurman removed all of that vital historical context and presented an exception as representative. Moreover, even Jacob the Outlier did not refer to this power as a royal prerogative, and even the power he posited was far narrower than the power claimed in this case, limited to only a subset of the cabinet. He said only that the king could remove “the great officers,” which was a term of art typically referring to nine particular officers. Even on the broadest reading, “great officers” referred only to a subset of cabinet-level officers, a far cry from the modern category of “principal officers” or the legions of administrative law judges in dispute in this case.
Fn. For “the Founders’ bookshelf,” see, e.g., David Lundberg &
Henry F. May, The Enlightened Reader in America, 28 Am. Q. 262
(1976); Julian Davis Mortenson, Article II Vests Executive Power,
Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019); see also “Freehold Offices”.
Here’s more detail and follow-up in my paper “Venality and Functionality”:
Coke’s endorsement of non-removability is especially relevant to a unitary executive theorists’ mistaken reliance on another source (in addition to taking this source out of context). Beyond this list of “founders’ bookshelf” books, I also looked into over 30 English and American law dictionaries and law reference books of the era, from 1701 through Webster’s 1806 dictionary. Most have little detail on the royal prerogative. Of the few that do, I found only one recognition of a royal power of removal: in Giles Jacob’s Every Man His Own Lawyer, published in 1779, and which was also on many American bookshelves. As Jacob had written in this book and his earlier dictionaries:
The king is the fountain of honour, and has the sole power of confer[r]ing dignities and honourable titles; as to make dukes, earls, barons, knights of the garter, &c. And he names, creates, makes and removes the great officers of the government.[3]
Most importantly, Jacob was essentially the only source out of the thirty dictionaries in this study to suggest a royal removal power, even in this narrow extent for “great officers.” The only book on the “Founders’ bookshelf” to suggest a royal removal power (De Lolme) was even narrower in its description, not listing it among the royal prerogatives, and even narrower a power over “Generals, Ministers of State, or so,”[4] even more limited that Jacob’s reference to “great officers.”
Recall that the term “the great officers” was formally limited to a small number of traditional officers, some of whom had more a judicial or ceremonial role than an executive role (see discussion Section IV.A).[5] Given those problems, and for being the only one of thirty-or-so dictionaries to suggest any removal power, we might call him “Jacob the Outlier.”
Moreover, among the Jacob offered many citations to statutes and treatises to support his summary statements and definitions in Every Man His Own Lawyer and in his New-Law Dictionary editions, but conspicuously, Jacob’s single citation for this sentence in his various editions is Coke: “1 Coke Institutes 165.” This page and entire section did not support the removal claim or mention removal at all,[6] and thus, when evaluating Jacob’s reliability, it is notable that Coke elsewhere endorses offices-as-property. Jacob appears to offer no other support for his removal claim.
The bottom line is that if unitary executive theorists are relying on Giles Jacob, it tells you just how little evidence they actually have, and it shows an example of the all-too-common originalist method of cherry-picking and taking evidence out of context to achieve ideological ends.
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