Law, History, Emoluments, the Deep State (i.e., the Rule of Law)… plus some family fun. Twitter: @jedshug
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.
Overlooked SCOTUS big deal: Today the Roberts Court decided to hear the “independent state legislature” case. (My explainer below)
Urgent November 2022 campaign message: “If you don’t want the Roberts Court and a Trumper Gov & AG to throw your votes for President to Donald Trump — like Trump plotted in the January 6 coup — Vote for Democrats for Governor, Attorney General, and State Legislators!”
Explainer: The “independent state legislature” doctrine at the heart of the Trump/Eastman/Sen Ron Johnson conspiracy to disenfranchise the voters and certify electors chosen by Trumper state legislatures (I.e., fake electors).
The Constitution’s election clause says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This clause is most relevant to redistricting cases, but the independent state legislature doctrine would also give state legislatures — as opposed to judges ruling on the state and federal constitutions, and as opposed to governors and expert agencies — control over voter registration, early voting, voting by mail and even the final selection of presidential electors themselves. In the past, judges have interpreted the clause to give states that power broadly, shared between the executive, legislative and judicial branches, and with the state and federal constitutions as limits on partisan power grabs.
Now the argument is that state legislatures have that power solely, coincidentally when most key states have super-gerrymandered rural-skewed Republican legislatures.
There are likely five votes for this pseudo-textualist/originalist nonsense.
I’m getting questions about abortion rights after Dobbs. I post more regularly on Twitter @jedshug, but let me try to briefly address some of the main questions here, executive summary first:
1. What about an exception to save the life of the mother? A fetus that 100% won’t survive?
Sorry, there seem to be five clear votes that there is no abortion right, even in the most horrifyingly clear situations.
2. Could SCOTUS or Congress ban abortion nationwide?
Yes. SCOTUS unlikely. If Republicans sweep the 2022 Senate and then the 2024 Presidential and House elections, a national ban by statute would be on the table.
3. Can this Congress “codify” abortion rights? Could the Democrats have done so in 2009 or earlier?
Not really. I think this whole “codification” rhetoric/angst is mostly a red herring. If Congress had passed such a broad law, it would get struck down by the Roberts Court. Only a law closely tied to “interstate commerce” could survive, and even then…
4. Can anti-abortion states criminalize travel by their residents to get an abortion in another state? Maybe. This is a very complicated legal question… And it raises a similar question:
5. What about other “unwritten” rights or “substantive due process rights” like a right to travel? Marriage equality? Privacy and birth control?
Good questions. I’d worry about IUDs and surrogacy, worry a bit less about marriage equality, and the Pill could raise some legal questions, but I don’t want to be too alarmist here.
6. Abortion drugs: Can the FDA (and the DOJ) use a doctrine called “preemption” to protect FDA-approved mifepristone, etc., from state criminal or civil penalties?
I’m skeptical. It’s urgent that Congress pass a clear preemption statute, and nuke the filibuster to do it. While they’re at it, add seats to the Court. But none of that is likely.
More complete answers:
1. What about the life of the mother or a catastrophic fatal fetal illness/genetic defect?
There is no sign of such an exception in this decision. In fact, Kavanaugh, the 5th vote to overturn Roe, wrote in concurrence:
“The Court will no longer decide how to evaluate the interests of the pregnant woman and the interests in protecting fetal life throughout pregnancy. Instead, those difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.” p. 11.
I agree that there should be a religious exemption (e.g., Jewish law/ Halacha requiring abortion to save the life of the mother), but I am not optimistic about this Court taking an even-handed approach to religious freedom.
2. Could the Supreme Court rule in the future that a fetus is a life and it must be equally protected against murder nationwide?
Yes, but unlikely. I speculate there are only 2 votes (maybe 3) for that enormous step. Alito’s reasoning at p 31-32, signed by five Justices, indicates that abortion “ends potential life.” _Potential_ life. Kavanaugh’s concurrence rejects a more pro-life national position, and I just don’t see Gorsuch agreeing that it ends “a full human life,” but maybe they’d agree that 3d trimester is a full human life? It really depends on future appointments.
If Republicans take over Congress and a Republican wins the presidency, Congress could ban abortion nationwide. I think the GOP would need huge majorities in both Houses, because some number of Republicans wouldn’t go along with that, but it is possible. [Update 6/27 on how this statute could be sustained by the Roberts Court: My colleague Julie Suk and I agree that a Republican Congress could rely on the 14th A., Sec 5, and make claims about its interpretation of “life” being a “congruent and proportional” enforcement of equal protection (of life), so that even if the Court didn’t go all the way to a fetal life interpretation of 14th A, Sec. 1 on its own interpretation of “equal protection,” it might defer to Congress’s fact-finding (plus a special “abortion”/life rule to distinguish this case from U.S. v. Morrison) and sustain such a federal statute. More likely than Interstate Commerce Clause.]
3. Congress “Codify” Roe? This is a red herring.
The Supreme Court can protect — or abolish — abortion nationwide because the 14th Amendment gives it the power to apply due process and equal protection nationwide against the states. But Congress needs an enumerated power, like regulating interstate commerce or enforcing due process/equal protection *but only congruently and proportionately* to rights recognized by the Supreme Court. Once the Court struck down Roe, there is no congruence or proprotionality to “codify” a 14th amendment right to abortion. The other option is “interstate commerce,” but the conservative Supreme Court has been narrowing such congressional power since the mid-1990s, especially for local and “family-law” issues. Could Congress pass a law now to protect “interstate abortion commerce” or “interstate abortion travel”? Yes, they should, and nuke the filibuster to get there. More on interstate travel:
4. Can anti-abortion states criminalize travel by their residents to get an abortion in another state?
Maybe. This is a very complicated legal question. Justice Kavanaugh’s concurrence tries to clarify some tough questions, on p. 10:
“[M]ay a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel. May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause.”
5. What about other “unwritten” rights and substantive due process rights? Travel? Marriage equality? Birth control? Privacy?
This is the same part of Kavanaugh’s concurrence where he tries to clarify that other unwritten rights (and maybe “substantive due process” rights) are still safe. He also wrote:
“First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold; Eisenstadt; Loving v. Virginia, & Obergefell (marriage equality 2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
I don’t think he was just describing the effect of the majority. I think he was signaling that he is not going to vote to overturn those precedents. And even though Roberts voted against Obergefell and marriage equality in 2015, I just don’t see him as a fifth vote to overturn it, especially not now. However, if Roberts dies or retires during a Republican presidency, all bets are off.
The real problem is for surrogacy and IUDs. In surrogacy and implantation, as I understand it, doctors try to implant multiple eggs, and if more than one impants, the process generally calls for “selective reduction,” which many states would criminalize as abortion. States can also claim that IUDs sometimes prevent a a fertilized egg from implanting, even if the science shows that such occurrences are rare. Could a state legislate that any fertilized egg/zygote a “human life” and an IUD is murder? I know this sounds crazy, but yes.
Could a state say the same about the Pill? Not if they care about science, but they don’t care about science, and I don’t trust this Court, either.
Could a state say the same about the Pill? Not if they care about science, but they don’t care about science, and I don’t trust this Court, either.
6. Preemption? Can the FDA’s approval of mifepristone create federal protection that preempts state criminal and civil penalties?
I doubt it. The Court decided Wyeth v. Levine in 2008 against FDA preemption of state tort law, and I thought it was a good result and well-reasoned. The doctrine emphasizes that Congress needs to expressly/explicitly preempt, or that the agency interpretation that there is conflict and preemption has to be persuasive. Here is Wyeth:
“As Congress enlarged the FDA’s powers to “protect the public health” and “assure the safety, effectiveness, and reliability of drugs,” Congress took care to preserve state law. The 1962 amendments added a saving clause, indicating that a provision of state law would only be invalidated upon a “direct and positive conflict” with the FDCA. §202, id., at 793. Consistent with that provision, state common-law suits “continued unabated despite . . . FDA regulation.” Riegel v. Medtronic (GINSBURG, J., dissenting); And when Congress enacted an express pre-emption provision for medical devices in 1976, it declined to enact such a provision for prescription drugs…”
“The weight we accord the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf. Mead (2001); Skidmore (1944). Under this standard, the FDA’s 2006 preamble does not merit deference.”
That’s not a promising decision, which a mix of liberals and conservatives signed. (Stevens wrote it, joined by Kennedy, Souter, Ginsburg, and Breyer, with Thomas concurring).
“In the context of federal preemption of state drug law, plaintiffs must rely on implied preemption theories. The Supreme Court has noted that Congress expressly preempted state law when it created legislation that governed medical devices, but never did so for pharmaceuticals.”
The authors argue for implied preemption, but I am not yet persuaded, and I very strongly doubt the Roberts Court would be, because it undermines federalism, it seems to run against the text and purpose of the FDA statute preserving state law, and… well… we’re talking about abortion drugs and a very anti-abortion Court.
If the Supreme Court did not defer to the FDA and preemption in a complicated case about drug labels, where Congress gave little sign of preemption, why would the Roberts Court find preemption here? Roberts and Alito voted with the FDA over the states in that case, but I think the issues were so different that they could easily explain a vote against the FDA here. I think this case loses 6-3.
Congress must pass a clear preemption statute that abortion drugs preempt state criminal and civil law, and the Democrats should nuke the filibuster to do it. While they’re at it, add seats to the Court. But unless we speak out, none of that is likely, and unless we all mobilize in every state and federal election of our lifetimes, it’s going to get worse, not better.
I summarized my replies to the unitary executive co-authors of the Seila Law brief (Steven Calabresi, Michael McConnell, Sai Prakash, Jeremy Rabkin, Mike Ramsey, Michael Rappaport, and Ilan Wurman) in a post on the Yale Journal on Regulation’s blog “Notice and Comment” here.
Some key points and conclusions:
“I think it is important to acknowledge how this misquote itself is a microcosm of a pervasive problem in originalism: because of a series of assumptions, originalists often jump to conclusions of certainty from more uncertain and contested meanings. Here, Blackstone was explicitly saying “I do not know” whether something was true about the law of offices, and the unitary theorists changed the words to jump from Blackstone’s explicit uncertainty to a statement of certainty in their brief and two articles. That should be a serious red flag about originalist methods, and it should have been a moment for the authors to pause and reconsider their strongly worded conclusions in their brief: claims of “overwhelming weight of the evidence” (p. 7), that their conclusions were “unquestionabl[e],” that our [Kent, Leib & Shugerman] alternative interpretation was “simply a disagreement with the Constitution.” (p. 17)…
“To be clear, the misquoting of Blackstone may be their most obvious error, but these are not the most serious, pervasive, and fundamental historical errors. The “Decision of 1789” plays a more central role in the unitary executive precedents (Myers, Seila, etc.), and Sai Prakash’s misinterpretations of First Congress sources were more widespread (Appendix here). Former federal judge Michael McConnell’s book has gaps, unsupported claims, and fundamental errors undermining its thesis (described here in “Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus”). After many months of sharing my concerns privately, only Wurman and Ramsey have replied publicly, and only on the narrower question of Blackstone on the removal power…
If one misquotes a major source in a brief – and then offers a defense that one got the gist right anyway – one ought to have overwhelming evidence for that “gist.” (And even then, it’s still problematic to change any quotation’s plain meaning). Unfortunately, they have not offered any evidence that Blackstone recognized a general, traditional royal power of removal. Their new Blackstone citations backfire.
I am not simply suggesting that their historical evidence (for the claim that Blackstone’s Commentaries are evidence that the king had a general power or prerogative to remove “executive” officers as part of “executive power) is weaker than the evidence I and others have offered. To be clear: I find that none of their evidence actually supports their brief’s general claim…
Their Retreat from “Overwhelming Evidence” to Mere “Plausibility”: From Their Originalism to Royalism:
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). 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).
Wurmanalso 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.”
It is still unclear why the English monarch is the right baseline for the American republican chief executive, but even assuming it is, arguendo, this is yet another unsourced claim. English removal powers and their limitations were worked out between king and Parliament over centuries, going in different directions over time. Blackstone suggested no default rule, and the best reading of Blackstone and other sources like Aylmer is that royal removal powers were contested and limited over time. Many offices were removable, many were not, but Blackstone had no general category of “principal executive officer,” and even if one could project such a category back onto Blackstone, he did not discuss “removal” as a royal prerogative or a general rule for “executive officers.”
This is where these scholars have retreated to royalism, rather than republicanism, even though McConnell fundamentally rejected this approach (the problem of relying on whatever a king could do, rather than the Founders’ unbundling of the list of prerogatives). In fact, that’s the point of his own title, “A President Who Would Not Be King,” and the point of his introduction, method, and thesis. McConnell himself tells us that pointing to English royal practices as the basis for presidential power is royalism and Schmittian, and not faithful to the Founding. I can’t help but conclude that, in the end, both the brief and the book are royalism, not originalism.
The Seila Law brief, Prakash’s article on the Decision of 1789, and McConnell’s book each misuse many historical sources, and many of their core historical claims are not backed by evidence. I ask readers to take a look for yourselves. The unitary executive theory is premised on the concept of presidential accountability. What about accountability to historical accuracy? Accountability to the courts for misquoting sources in briefs and misusing sources in books and articles cited by the Supreme Court? Originalism claims its legitimacy from a historical record and historical interpretation being clear, reliable, and open to new evidence. If the amicus brief’s historical arguments do not stand up to scrutiny, and if the Supreme Court has been citing this flawed historical scholarship, what would be the appropriate next step for originalist amicus authors?
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 #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.
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).
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.
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.
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 accuratelyreflected 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.
Here is a summary of how their evidence shows the opposite:
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:
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):
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.
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.
“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.
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 theiroffices)…” 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 Officersof 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.
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.
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.
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 accuratelyreflected 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:
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)
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.
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.
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.)
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.
[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.”
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 knowthat 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 “duesubordination” 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.
This is the second post in a series of responses to Mike Ramsey and Ilan Wurman on the unitary executive history and their use of Blackstone and historical sources in their Seila Law amicus brief. As I said in my first post on Jan. 7, I want to reiterate my appreciation that these two co-authors have stepped forward to defend their use of Blackstone. I also appreciate that they have conceded error on one of the uses I raised (their misinterpretation of the royal prerogative of “disposing” offices as removing from office). They contend that this error was inconsequential. They also claim that changing the wording and plain meaning of a Blackstone quotation was simply a “clarifying” of its overall meaning. I disagree.
Blackstone’s list of prerogative powers may seem like an esoteric and irrelevant consideration for American law. However, it is precisely the clarity of an established enumerated list that they claim the Framers relied on, and that they say differentiates their approach of republican rule of law, as opposed to “unbounded” executive power or “Schmittian” authoritarianism (McConnell p.28). If they cannot cite removal as a listed prerogative power, they aren’t following their declared method or the historical narrative that they’ve claimed to distinguish their argument from royalist cherry-picking. The list is their own difference between being bound by law or unbound by law.
Wurman wrote, “I think Jed is right that I read too much into the passage. I don’t think the error changes any substantive conclusions, but I think it’s important to correct the record… In any event, 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.”
Ramsey followed with a similar conclusion: “Ilan Wurman – the principal author of the Seila Law brief – acknowledged that the brief read too much into this particular phrase (and I agree). But the overall implication of these passages seems unmistakably to be (as the brief said) that the king had ultimate control over prosecutions, law implementation, and offices.”
This response is one of the big-picture problems with the brief, and maybe a big-picture problem with originalism’s moving goalposts [Originalism claims to support rule of law values with clear and stable historical meaning, but here the history seems to be ripe for cherry-picking episodically for royal powers]. Both Wurman and Ramsey say here in these conclusions that the relevant historical question is “What were the powers of the English king circa 1787?” This is an assumption that the Framers were royalists or modeled the presidency on the full powers of the king. And are we to imagine that the Ratifiers knew the actual details of English administrative practices within English central government? Instead, we should focus on what the American Founders read, understood, and wrote. To be fair, they say elsewhere that this is the relevant question, which is why it is so important to get Blackstone right and not misinterpret or misquote him. The relevant question is about what the Framers and Ratifiers read, intended, and meant on this side of the Atlantic circa 1787.
The answer is both simpler and clearer (what was written on the established lists they used) and more complicated (how they split up that list).Their co-author Michael McConnell rejected Ramsey’s and Wurman’s royalist approach in his recent book aptly titled “The President Who Would Not Be King.” His more appropriate question is: What traditional English executive powers did the Framers intend to distribute? McConnell’s answer is that the Framers relied on Blackstone’s list of prerogative powers, and they did not automatically give them to the president, but instead, assigned some to Congress, some to the president, some to both, some to neither. Kings used and abused many powers. A list of prerogative powers is the line between legal and extralegal.
Why Do They Rely Heavily on Blackstone and Royal Prerogative?
“As described below and in a series of subsequent posts, on further reflection I think the Seila Law brief was correct in its characterization of Blackstone, though it might have done a better job of supporting its conclusions (one must bear in mind that the length of amicus briefs is limited and Blackstone was only a small part of the brief).”
In fact, Blackstone was their opening argument and the first five pages of their substantive argument. In the short “Summary of the Argument” on p. 3, they highlight Blackstone as one of their “important historical sources,” and the cite four pages of Blackstone for their core opening claim: “[I]n eighteenth-century English law and practice the executive magistrate had the power to remove principal executive officers as part of the executive power to carry law into execution.”
To Ramsey’s credit, he also acknowledged in this post why Blackstone was so important: “As Michael McConnell shows in his great book The President Who Would Not Be King, the Constitution’s framers looked to Blackstone’s descriptions of the executive power in England as a starting point for their design, although they also made very substantial changes.” But did the brief actually follow McConnell’s explicit method of tracking Blackstone’s prerogative powers “as defined by law”? And did McConnell’s book follow its stated method on tracking Blackstone’s “list”? If Blackstone did not refer to removal as a “prerogative” power or list it as such, then there is a problem with both the brief and the book.
Another reason these scholars put so much emphasis on Blackstone and the First Congress/”Decision of 1789” is because the Constitution explicitly addresses appointment but does not mention removal, and most of the standard kinds of evidence for original public meaning during the Convention and Ratification Debates does not support the unitary theory (e.g., both Madison in Federalist #39 and Hamilton in #77 explicitly reject the unitary theory on removal). [Links to my papers on the unitarians’ problems here: “The Indecision of 1789: An Originalism Cautionary Tale” ; “Vesting”; “Removal of Context.“; “Faithful Execution” with Leib and Kent; “Fiduciary Constitutionalism” with Leib.] The unitary theorists need to reach back to Blackstone and the English king and reach forward to the First Congress in order to expand the meaning of “executive power” and claim that “executive power” included removal of executive officials.
To modern 21st century ears and our assumptions about royal power, this claim seems unremarkable, but it turns out that early modern English administrative history is far more complicated than that, given that England was a limited monarchy mixed with aristocracy and offices-as-property. As Blackstone noted himself, many offices were not only protected from removal; they were often held for life, for an removable “term of years,” and were even inheritable to descendants and sellable (though sale was more heavily restricted). More on this below.
The unitary theorists rely on Blackstone because they need a historical basis for a capacious meaning of “executive power,” broad enough to give the president implied powers beyond the ones listed in Article II (e.g., veto and pardon), but, they say, not so broad as to be lawless. There are many problems with relying on the general history of the English monarchy as the Framers’ model for a republican president. These scholars know they cannot just create an American model based on things sometimes done by English kings. The scholars have said themselves that such an open-ended royalist approach to expanding the term “executive power” so capaciously would risk a kind of absolutism or authoritarianism. But the “English royal prerogative” could have provided a bounded and enumerated list of powers for the Framers to distribute, some to the president, some to Congress, and some to neither.
This claim that the Framers and Ratifying generation understood “executive power” to include “the royal prerogative” not otherwise assigned elsewhere is heavily contested, but for the sake of understanding the structure of [McConnell’s new version] of the unitary argument, let’s assume it arguendo. Once the unitary theorists assert this connection to the royal prerogative, they acknowledge that they rely on Blackstone to provide that bounded list. Here is a key passage from amicus co-author Michael McConnell’s introduction “Purpose, Scope, Methods,” in A President Who Would Not Be King (2020), p. 11:
In its broadest sense, “prerogative” sometimes is used to mean power undefined by law, unrestrained by law, and, when necessary, superior to law. Locke famously described prerogative as the “Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it.” Prerogative is therefore associated with the Schmittian conception of sweeping emergency powers and an unchecked executive. In the British constitutional tradition, however, the prerogative powers (plural) were defined by law. The king could act unilaterally within his prerogatives but not range outside them. In this tamer version, the law defines the bounds and subject matter of prerogative powers but does not govern the content of decisions made within those bounds. Under the common law, executive decisions based on prerogative could be challenged as ultra vires but not as unreasonable, unjustified, or ill-motivated.
McConnell, p. 11
When McConnell contrasts his approach to the “Schmittian conception,” it’s a reference to Carl Schmitt, and those are strong words – appropriately strong. It’s not just a rejection of the openly Schmittian scholars like Adrian Vermeule. He is distinguishing his legal “bounded” approach from the unbounded approach to Article II “executive power,” and rightly allows a role for Congress (i.e., he does not embrace “indefeasibility” for implied powers). The notion is something like: We’re in the Anglo-American rule of law tradition, not mid-20th century German lawlessness. By recognizing the traditional limits of “ultra vires,” McConnell wisely acknowledged the limited scope of executive power. He also relies on Matthew Steilen’s excellent work on the Framers’ more limited use of “legal” prerogative “defined and limited by law,” as opposed to unbounded royalism (p. 29).
To follow through on such limits, McConnell relies on Blackstone’s explicit “lists,” similar to Article I’s enumerated powers limiting Congress’ power. In McConnell’s introduction, he announces:
A principal conclusion is that the framers self-consciously analyzed each of the prerogative powers of the British monarch as listed in Blackstone’s Commentaries, but did not vest all (or even most) of them in the American executive.
McConnell p. 11
These passages in “Purpose, Scope, Methods” laid out McConnell’s method and thesis: The Framers were working from Blackstone’s list of royal prerogative and distributed them to a mix of the president, the Congress, or neither; this method allows for implied presidential powers, but still reflects the Framers’ commitment to a limited or bounded executive. McConnell often relied on Blackstone’s list of prerogative powers (or “established” “lists of royal prerogative powers”) as the basis for Article II several times. See 39, 95, 206, 235. See also 78, 256, 330. See also chapter 7, “The Framers’ General Theory of Allocating Powers.” The book’s title reflects the book’s method: the Framers were not re-creating a king, so don’t draw from history to find just anything done by a king. That would be cherry-picking from almost a millennium of uses and abuses of royal power. The limited lists of royal prerogative were a source of executive power “defined” and “bound… by law.”
Then McConnell created a list of “the most important prerogative powers still vested in the Crown at the time of the composition of the United States Constitution” and included “removing officers other than judges.” P. 30. Similarly, he wrote at p. 99, “But the eighteenth-century monarch continued to have important prerogative powers, such as the power [McConnell lists fourteen, including]… to appoint and remove officers… to list some of the more important.” McConnell made similar references to removal as a prerogative power or a royal power at 161-62, and implicitly 39, 95.
The problem is that I cannot find a reference to removal or anything like it on any list of prerogatives in Blackstone or Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown, which McConnell stated were his two “principal sources for the law of prerogative.” p. 368 n. 7. The lists including removal on p. 30 and 99 have no footnotes, other than a general reference to Blackstone and Chitty citing no specific page numbers. Similar references to “lists” or defined prerogatives at p. 26-27, 206, 235, and 256 do not cite where to find such lists. The section “Presidential Power to Remove Officers” claims, “The king had the prerogative power to remove most officers at will. (The right to some offices was a form of property, held in fee…” (p. 162) The rest of the paragraph [Jan. 11 correction: passage on offices held at pleasure] cites only two specific examples from Blackstone (sheriffs and justices of the peace) and a 20th century historian William Holdsworth. Neither one described removal as a royal prerogative (the Holdsworth references were unclear, and to McConnell’s credit, he did not overclaim from Holdsworth’s discussion of the “cabinet” (454)). I can address these sources in more detail in my paper (or in a more detailed follow-up post).
[Update: photos here of p. 162 and its notes, including the surprising reliance on the conduct of King George III in 1783, in the aftermath of losing to the American rebels, suggesting here and in their amicus brief that it was a positive example, not an anti-model, for the Americans who had just rebelled against him. A 20th century historian’s loose reference to “prerogative” is not the same as a contemporary use of the term.]
The bottom line is that I can’t find any evidence that Blackstone or any contemporary sources listed or explicitly described removal as a royal prerogative. Maybe I’ve missed something, but I have been chasing down their footnotes and sources for months. And Wurman’s and Ramsey’s replies have not pointed to anything specific, only some examples of offices held at pleasure (proving not enough) (Ramsey Part 3 & 4) or general passages on royal power (proving too much) — such as a claim that “dominion” over those “commissioned” or over “officers” means removal (Ramsey Part 1), except both categories include judges… who were not removable. So Blackstone’s “dominion” does not mean what they claimed it means.
As a practice, it seems like “cabinet” level officials were indeed removable at pleasure, but even for these offices, the removal power is not described in Blackstone or other contemporary sources as a prerogative power, as far as I’ve seen. In my paper and blogposts, I have identified several passages in Blackstone that suggest the opposite: not only was removal not a royal prerogative; it was not a general traditional norm. 1 Blackstone 334-36; 331, 341; 2 id. at 36; see my paper for the other contemporary and secondary sources explaining in more detail; More on that in a future post.
I have been working my way through 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 JC Sainty, “The Tenure of Offices in the Exchequer,” 80 English Historical Review 449-75 (July 1965) on the important offices of chancellors and chamberlains.
Julian Mortenson, in his “Article II Vests the Executive Power, not the Prerogative Power,” Columbia L. Rev. 1224-28 (2019) created a list of 39 prerogatives from Blackstone, spanning 1 Blackstone pages 242 to 306, from the power “to make treaties, leagues, and alliances with foreign states and princes” and “the sole prerogative of making war and peace” to the power to build lighthouses and markets to the right to gold mines, washed-up goods, whales, sturgeon, and “valuable animals as are found wandering” without an apparent owner. One of those prerogatives was “the prerogative of erecting and disposing of offices,” which their amicus misconstrued. None of the listed powers mentioned removal or anything like it.
A Puzzle or a Solution?
McConnell suggests that it “is a puzzle” that the Framers put appointment explicitly in Article II, but not removal:
The king had the prerogative power to remove most officers at will… The Committee of Detail and the Convention addressed and allocated every other significant royal prerogative, but not the Removal Power. Yet it is hard to see how it could have been neglected; it is crucial to the structure of the executive branch… Given the undoubted importance of the Removal Power, it is mystifying that the drafters said nothing about it. There are no plausible strategic reasons for silence on the matter.
Perhaps we can solve McConnell’s puzzle by challenging his historical assumption that removal was a royal prerogative… and his modernist assumption that removal at will is “crucial to the structure of the executive branch.” Maybe it is because McConnell’s general theory could be right, but the specific application here was wrong: The Framers may have been using Blackstone’s list of prerogatives to distribute and name powers, and the Framers did not name removal because removal was not on Blackstone’s list. This absence would be consistent Blackstone’s understanding of England’s mixed history of offices as lifetime property or unremovable for a term of years. (2 Blackstone 36).
McConnell vs. Amicus? Take Care vs. Vesting? Duties vs. Powers?
This is where the prerogative path in McConnell’s book diverges from the brief’s two paths. All three are historically problematic.
First, McConnell may have been/could have been mitigating the “not on a prerogative list” problem by not relying on the Executive Vesting Clause for removal. Instead, he relies on the Take Care clause (166, 262). This move has advantages for supporting the unitary theory: In McConnell’s schematic, Vesting Clause powers are defeasible, while Take Care powers are indefeasible. McConnell also recognizes that the Executive Vesting Clause basis would go too far: it would invalidate civil service laws because “executive power” would apply to the removal of any executive officer (165). But this opportunity to mitigate or avoid the prerogative problem gets lost when McConnell decides to invoke “Take Care” as a prerogative power. It seems like McConnell is now suggesting that the Take Care clause is a catch-all for combining royal prerogatives, and perhaps he is shoehorning an assumed/mistaken “removal” royal prerogative into an assumed “Take Care” prerogative. On page 68, he has a chart that lists the duty to “Take Care That Laws Be Faithfully Executed” as a “Prerogative Power of the King.” On page 166, he writes of removal as indefeasible, “The Take Care Clause, which is a duty that implies the power to supervise all officials engaged in execution of the law, has the hallmarks of prerogative.” Neither claim had a footnote. It does not appear McConnell was drawing on Blackstone, because, as Ethan Leib and I have found, Blackstone associated “faithful execution” language with the duties of bailments, not with royal prerogative and kings. As Andrew Kent, Leib,, and I detailed in “Faithful Execution and Article II” in 2019, the “Faithful Execution” language in the Take Care clause and the Presidential Oath had a original public meaning of imposing duties and limiting discretion, and the language was not drawn from the empowering royal coronation oath, but from the limiting oaths of ministers, mid-level officials and even low-level functionaries. “Take Care” and “faithful execution” did not have the hallmarks of prerogative, nor is it clear why duty-imposing language would lead either to indefeasibility or to powers greater than the duty. As McConnell says elsewhere in the book in crticizing Justice Holmes, “Most of the provisions of Section 3 to which Holmes referred are actually duties rather than mere powers, which makes a significant difference…” 242-43. The language of “take care” and “faithful execution” is more duty than power, and it is puzzling that this non-royal republican language of duty and limitation could generate a power greater than England’s kings had.
The amicus brief did not follow McConnell’s problematic path to Take Care as prerogative. It stuck with the combination of take care and vesting. But that meant two different errors. First, they had to stick with arguing that removal was a prerogative power, and that led to mistakenly grasping for “disposal” (in “the prerogative of erecting and disposing of offices”) as removal. To Ramsey’s and Wurman’s credit, they concede error, but they fail to see its significance. They seemed to have understood the importance of McConnell’s anti-Schmittian “legal prerogative” hook, or otherwise they would not have stretched the meaning of “disposal” so far. Without a prerogative power, they’re grasping at things kings did, i.e., royalism. The disposal error is especially puzzling, not only because Blackstone consistently used the word as “distribution,” but so did McConnell – at least six times, and never as removal. McConnell 69, 97, 122, 229, 230, 275.
Without the word “disposal” at their disposal from Blackstone’s list, they are left with the approach that McConnell rightly rejected. The argument about whether the Framers intended to vest any of the royal prerogative to the federal government at all is heavily contested. The influential book by Eric Nelson, “The Royalist Revolution,” does not claim that some/many Framers wanted to restore the full panoply of late eighteenth-century royal power, but instead, Founders like Hamilton, Wilson, and Adams wanted to bring back traditional executive powers based on an established legalist prerogative, more often looking back to the seventeenth century. These Framers were still critics of the more recent monarchs’ use of powers. I don’t know of any evidence that the Framers were drawing more generally on whatever powers English kings had exercised or any new powers they had gained in the eighteenth-century. And even if they did, the scope of royal removal power beyond the cabinet is unclear. The amicus brief took on a burden to prove its claims about English royal power AND about how royal power fit into the Framers’ scheme and original public meaning. Even before we get to the problem of misquoting Blackstone, their amicus brief fell short of that burden when it turns out they fundamentally misinterpreted Blackstone’s list.
Up next: The brief’s second path: relying not on Blackstone’s legal prerogatives but on royalist anecdote. And why misquoting Blackstone is a big deal.
I’d like to take this opportunity to apologize for some sarcasm, to explain other sarcasm and strong wording, to offer context, and to offer some initial reflections on the norms of scholarly amicus briefs, articles, and Twitter. This post is the first of a series leading up to my conversation/debate with Mike Ramsey, a co-author of the Seila Law amicus brief, on Eric Segal’s “Supreme Myths” podcast. (Part 2 on McConnell’s use of Blackstone and royal prerogative is here. I’ll post a link to the podcast on Friday here). I sincerely appreciate Mike’s willingness to have a conversation on this topic. Mike is a great guy, and we have had excellent public and private conversations about originalism (I’m an originalist only in theory, but he is an originalist in practice). He was a terrific guest in our Constitutional History Workshop at Fordham this fall, where he presented this outstanding article, “Originalism and Birthright Citizenship.” I’d like to clear the air here so that Mike and I can move forward with our conversation next week. I am sure we would anyway, but I would like to apologize and provide context.
As long as Mike has flagged problems with my tone, I also have some thoughts about their amicus brief and the style of originalist overconfidence and overclaiming. At the risk of being taken as snarky, I would identify it as a style of “originalist chutzpah.”
Eric’s podcast is for a general audience, and it is not the right forum for detailed questions about the First Congress, “the Decision of 1789,” and Blackstone. But for the narrower audience who wants such details, I will offer in this series of posts a review of my questions – frankly, some sharply pointed but necessary questions – which I hope Mike would agree that he and/or co-authors will address in some format.
On Nov. 30th, I posted a paper “Removal of Context” (forthcoming Yale Journal of Law & the Humanities 2022) on the misuse and misquoting of historical sources by originalist scholars to support their unitary executive theory of unconditional presidential power. In a recent Supreme Court case (Seila Law v. CFPB in 2020), several of these scholars filed an amicus brief which, among other problems, misquoted and misinterpreted Blackstone, and they also relied on misinterpretations and misuses of sources from the First Congress to elaborate on the ostensible “Decision of 1789” (in my opinion, the more numerous, more serious misuse of sources, and still unaddressed by the amicus co-authors. See my paper “The Indecision of 1789” here). The Roberts Court adopted their incorrect historical arguments.
On Dec. 1st, the brief’s lead author, Ilan Wurman, replied on the Notice & Comment blog here. In mid-December, Mike Ramsey posted “A Sharp Exchange on Blackstone, Removal Power, and the Scholars’ Brief in Seila Law v. CFPB.“ In late December, he followed up with a series of four. First and foremost, I want to express appreciation that both Wurman and Ramsey have stepped forward to explain their interpretation and editing of Blackstone. To their credit, they both acknowledge that they misinterpreted Blackstone’s use of “disposal” of offices as “removal” from office, instead of appointments to offices at his disposal. However, they claim that this error does not affect their conclusions. I disagree – and I am relying on their co-author’s own terms about the “Schmittian” stakes: the significance of Blackstone having “listed” powers, and of the distinction between powers “defined by law” vs. the dangers of “an unchecked executive.” Michael McConnell, The President Who Would Not Be King 11, 28, 30 (2021).
I will address the larger substantive problem of misquoting Blackstone in a later post. It’s important to note that Blackstone is just one of many errors I’ve identified, and none of the amicus co-authors have addressed the even more significant errors in their longer discussion of the First Congress and the Decision of 1789. But Blackstone is the terrain they’ve chosen to defend. At this point, I think it is helpful to see the original Blackstone quote next to how they quoted it. I put the two texts side-by-side in this tweet. In this post “Removal of Context, Part III: Misquoting Blackstone in Seila Law Amicus,” I provided three reasons why they should not have changed Blackstone’s statement from “I do not know X” to a positive claim of “not X,” beyond the elementary problem of changing quotations from their original plain meaning, especially in an amicus brief.
Neither one acknowledges a substantive error, because they claim they still got Blackstone right. Wurman conceded “I grant the matter is less clear than I originally believed,” but concluded: “In any event, 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. Jed so far hasn’t pointed to specific evidence to the contrary…” [For the record, I did point to a lot of evidence to the contrary. More below and in the next post].
Ramsey offers this partial acknowledgement on their misquoting Blackstone (only partial, because he still claims their “shortening” was really a “clarification” and “the Blackstone passage meant what the brief said it meant”):
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 offers these more general conclusions:
Thus while I thank Professor Shugerman for engaging in the debate and prompting this reassessment, I find his objections to the originalist account of Blackstone on removal power to be unpersuasive…
I think [my] foregoing analysis largely confirms what prior executive scholarship has said about it, and refutes the strongly worded objections Professor Shugerman has raised.
Before offering substantive responses to Wurman and Ramsey, I first want to address Ramsey’s concerns about my tone. In addition to frequently calling my exchanges “sharp” and my critiques “strongly worded,” Ramsey wrote that he found some of my engagement “snarky.” I’d like to take this opportunity to apologize for my snarkiness or sarcasm. Ramsey did not identify what he thought was snarky, but in retrospect, I think three of my tweets on Dec. 6 or 7 (here, here, and here) in response to Wurman were sarcastic or too sharp, and that tone was counterproductive. I think we are still working through the norms of social media, and I will offer more context and thoughts below. But as long as we are taking about blogs and tweets, perhaps the norms of amicus brief quotations and tone towards other scholars is also on the table today.
I offer no apologies for my “strong wording” and “sharply” contesting the way they misquoted Blackstone and the way they misused the First Congress. The misquoting and misuse of historical sources is a big deal, especially in an amicus brief to any court, and especially to the Supreme Court. If Michael is implying in his five posts repeatedly using the phrases “strongly worded” and “sharp” (as well as one reference to “snarky”) that my conduct generally has been less than collegial, I think that implication is unfair. I wish Michael had offered some context for balance, but I’ll provide it here: for months, I have been privately raising these questions with the co-authors because I sincerely tried to avoid such a spectacle.
In the winter/spring of 2020, I started reading the complete 1789 House debates with an eye towards the role of faithful execution as a “good faith” limit on presidential power, akin to “good cause.” Soon after Covid hit, I spent even more time digging into these debates and how judges and scholars had described (and misdescribed) them as a “Decision of 1789” endorsing the unitary theory. I noticed a troubling number of discrepancies between what I was reading and how Sai Prakash had described those debates or categorized some members. I thought about publicizing these concerns, but it was Covid, so I had limited access to some of the document, and I assumed others would have limited time and access to examine these questions. It also felt unfair to confront scholars for errors at the height of Covid, when many people were juggling family and health issues. I also knew that sheltering in place with my family was not any place for an academic fight – not for me or for anyone else.
Thus, I tried to take a generous approach. I emailed Prakash some specific questions about these discrepancies in April 2020, after the oral argument in Seila Law but while a final decision was still pending. He wrote back that he would take a look and get back to me. In the meantime, I posted my paper on Decision of 1789 (updated draft, “The Indecision of 1789”), but I kept all of my notes of Prakash’s discrepancies understated and “below the line,” i.e., in footnotes. I deliberately avoided any provocative comments or accusations, and instead focused on the curious absence of Senator Maclay’s extensive diary entries from all of these scholars’ discussions. The overlooking of Maclay’s published diary does not compare to misinterpreting other sources (omission vs. commission, etc.). Around this time, one of the brief’s co-authors, Michael McConnell, generously teamed up with me to plan a conference on the histories of presidential power, designed to bring together scholars on different sides of these debates, from different disciplines. McConnell has been generous and encouraging open dialogue throughout this process. We invited Prakash, Wurman, and Ramsey to participate, and they agreed. I was hoping to have a forum to raise these questions with Prakash about the Decision of 1789, but this summer, after I raised additional questions about his misuse of sources, he changed his mind about participating and backed out. Over the past 20 months, he has not addressed any of my many questions or concerns, either while Seila Law was pending, nor after.
In the meantime, I continued working on my book on the unitary executive and my draft articles “Vesting” and “Removal of Context” on Blackstone, which led me back to the Seila Law brief and its problematic use of Blackstone. That’s when I started seeing a new round of discrepancies. I contacted Ilan by email, and we had some constructive exchanges about my draft. As part of these conversations, I took a closer look at the brief to understand the structure of their historical argument – and I saw more problems. I wrote a 15-page letter with an appendix, and I sent it to each co-author, a letter that I acknowledge may have been too long and detailed — almost as long as the substantive section of their brief. Here was my introduction:
October 13, 2021
Dear Separation of Powers Scholars amicus co-signers,
I hope you are doing well. I write to you all reluctantly. Over the past four or five years, I have had productive exchanges and engaging conversations with most of you. I have not met some of you, but I have learned so much from all of you. I begin with thanks for your generosity and your deep research on Article II and the presidency. It was not my goal or expectation to write this letter, but after some mostly constructive exchanges with a few of you, I have reached a stage where I believe it may be more helpful to share my concerns with all of you.
I write to identify some concerns about errors and misreadings of historical sources in the Separation of Powers amicus brief in Seila Law. I believe these mistakes were in good faith, surely attributable to the complexity of England’s unwritten constitution evolving and revolving through the seventeenth and eighteenth centuries, the opacity of Blackstone’s language, the fragmentary nature of the letters and congressional records in the early republic, and the unfamiliar use of phrases in the Founding Era. I acknowledge that I have made good-faith errors in an amicus brief myself, which I took a few days to acknowledge, and for which I apologized publicly and sincerely. I sincerely invite your feedback, too. I have tried to write this letter fairly but candidly.
I had hoped this collegial approach would be more likely to persuade, and it did persuade them on one question (“dispose of offices” means distribute, not remove from office). But in a few conversations, I realized I did not persuade them on the significance of that error, nor about my many other concerns. And no one would acknowledge the most significant errors on the Decision of 1789. I gave them a heads-up that I would be posting my draft “Removal of Context,” and I decided to make that draft read like the substance of my letter: fair but candid. Tough but fair.
On Nov. 30, about six weeks after sending my letter, I posted my draft on SSRN, and I gave Ilan a heads-up. I posted a thread on Twitter linking the paper, with this note:
“I think these errors are in good-faith. This material is complicated, the 18th c. terms are obscure. But that’s the point: Originalists claim supremacy as the most reliable & objective method, on the eve of overturning Roe/Casey. These errors should give us all pause.”
One day later, Ilan posted his reply on Notice & Comment. On the one hand, he acknowledged the “dispose” error, but it is frustrating to see the misquoting problem treated dismissively, the other problems ignored, and to read this sentence:
In any event, 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. Jed so far hasn’t pointed to specific evidence to the contrary.
That’s not right. I offered a lot of new evidence. See “Removal of Context” at 24-25, citing 2 Blackstone at *36 (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.”) In the original draft posted Nov. 30, I added a contemporary account from Edmund Burke and secondary sources (Chester, Aylmer, Birk, Manners and Menand) explaining the significance of these limits on royal removal. Since Nov. 30th, I have added even more context and more Blackstone material to this section, but these basic points were in my earlier drafts that I sent Ilan in October.
I also provided specific evidence about their misunderstanding of “commission” in reliance on this passage at 1 Blackstone 243: “All others acting by commission from, and in due subordination to him.” “All others acting by commission” would include judges. (See id. at 268, 351; see also 317, 334). If amicus thought (and Ramsey reiterated in December) that “due subordination” signifies removal power, can they explain how judges fit in this sentence? They still haven’t. And they haven’t replied to my evidence related to what I identified as “perhaps the most significant problem with their use of Blackstone: The English “principal secretary” is not the equivalent of the U.S. Constitution’s “principal officer.” (see my paper at 30-31).
I acknowledge that my sarcasm may not have been helpful. My twitter poll comparing their use of Blackstone’s prerogative to Shania Twain’s prerogative and Bobby Brown’s prerogative was meant as part of my prerogative “to have a little fun” instead of venting frustration directly at the dismissiveness to this explanation.
But if Mike is going to publicly call out my posts as “sharp” or “snarky,” I think he should have also acknowledged the collegial, patient, and generous way I tried to handle these concerns since April 2020, and my efforts at dialogue and inclusion in the conference we’ve planned for May. (If I may say so myself).
And as long as Mike is raising concerns about “sharp” tone and “snark,” and as long as we are talking about tone and norms, I want to highlight a passage from their amicus brief that I had flagged for them in private correspondence in October – directly but discreetly. They still haven’t acknowledged it as problematic. If they are worried about tone, I’d appreciate if they might address this passage of an amicus brief, which I would not call snark, but I think this passage commenting on our work is indicative of chutzpah and hubris, and perhaps hamartia, not only in the context of being in the middle of a brief with so many errors, but as a broader problem endemic to originalism: over-confidence about the certainty of original public meaning and their own exclusive unitary (in both senses of that word) interpretation of the Constitution.
[Update 1/8: In a December 6 post, I flagged that they made these claims in the brief: “the overwhelming weight of the evidence is that removal was part of the executive power, necessary to the President’s role of law execution, and not assigned to Congress.” p. 7; “Additionally, the power to remove principal executive officers unquestionably belonged to the executive magistrate as a necessary component of the executive power to carry law into execution.” p. 9. In this post, I also flagged this section of the brief.]
Here is the more generous way I phrased this concern in my letter (and I will post my full letter as a pdf).
In the brief’s long section on the Decision of 1789, the brief also includes language of certainty and dismissiveness of our interpretations:
“Some modern scholars have argued that the Take Care Clause supports limiting the President’s ability to remove executive officers. See, e.g., Andrew Kent [Ethan Leib, and Jed Shugerman], Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2112 (2019) (‘Our history supports readings of Article II . . . that limit Presidents to exercise their power in good faith . . . . So understood, Article II may thus place some limits on the pardon and removal authority.’). This argument fails, however, because it effectively transfers the duty to ‘take care’ from the President, to whom the Constitution gives such duty explicitly, to Congress. The argument is simply a disagreement with the Constitution. ”
This passage was not the misuse of a source, but I ask about its appropriateness in an amicus brief. Just as there is a Take Care clause, so too is there “faithful execution” language as a limit on the take care clause, and there is a Necessary and Proper Clause. Imagine if, on the other side, we had written that the unitary argument fails, because it ignored the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” and it ignored the public meaning of legislative power to create officers and set their terms and conditions, and thus, we might have asserted that the unitary theorists’ argument is “simply a disagreement with the Constitution.” But this would have been improper. These different texts yield plausible interpretations.
As a (faint-hearted) originalist myself, I am concerned that the method of originalism is at risk of digging too deeply into its own assumptions, orthodoxies, and shibboleths. It seems indicative of a narrow, formalistic approach and excessive certainty about a singular original public meaning, even when historical sources point in other directions or at least in multiple interpretations or plural original public meanings. This language, assuming that the unitary interpretation of “take care” is “the Constitution,” is remarkable in a brief that contained many historical errors and incorrect assumptions.
I have been sharing this research and these questions for a while. I thank Mike Ramsey for posting my paper on the Originalism blog in the summer of 2020. I thank Ilan Wurman for his acknowledgement of my paper and the questions it raised. I most wholeheartedly thank Michael McConnell for reaching out across the political spectrum and including me in a conference on the history of presidency. I am hopeful that this dialogue will be productive.
In my own work, I find that these historical and textual sources cut in favor of non-delegation doctrine but against unitary theory. When I have made good-faith errors in an amicus brief with co-authors, I acknowledged them. I have no reason to suspect anything other than good faith in interpreting complicated material and distant language. I have tried to engage specific authors before writing this letter with sincere hope for dialogue. I will be making these concerns more public in the near future, now that I have been in contact with some of you privately over several months, and that dialogue seems to have run its course. I acknowledge that I surely have missed additional evidence and sources on the other side, and I hope you will take these questions as good-faith engagement, too. I have tried to be balanced in this letter. I have learned from reading your work, and I hope to continue learning and seeing what evidence I have surely missed. We all have a responsibility to get the history right, and I am sure my work will benefit from your replies and your feedback. I look forward to dialogue.
Sincerely, Jed Shugerman
I hope this context helps. My sarcasm in December was inappropriate. I was frustrated especially with Prakash and all of the co-authors who had not taken responsibility. I should not have directed such frustrations at Ilan, the only one who had stepped forward and stepped up. For that, I apologize. But it is well past time for those senior scholars to be accountable for the many errors and misuses of sources they either drafted, cited, or signed onto in an amicus brief.
More to come. Next up: The combined significance of the “disposal” error and the Blackstone misquotation
This post is the ninth in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.
My digging into the use of sources by unitary scholars on the Decision of 1789 started with going back to the House debate, and I started seeing some discrepancies and inconsistencies. The standard account is that the House debate is the only record of the legislative debate, because the Senate did not record debate. The unitary theorists’ reliance of one chamber’s legislative history has always been an irony, because their strict separation-of-powers doctrine otherwise rejects unicameralism (see, e.g., Chadha). Furthermore, strict textualists reject legislative history.
But I saw that Chief Justice Taft (in Myers in 1926) and Prakash had relied on the diary by Senator William Maclay for his record of the key Senate vote on the Foreign Affairs Bill. Myers v. United States, 272 U.S. 52, 115 n.1 (1926). See alsoClinton v. Jones,520 U.S. 681 (1998); Prakash, 91 Cornell L. Rev. at 1032.
I had just begun to dig into these debates when Covid struck and shut us in our homes in March 2020. I had been reading the House debate, but then I wondered, “Did Senator Maclay’s diary have anything more on this debate?” I knew he often wrote down juicy details of life in the First Congress. I assumed I had left my copy in my (then-Covid closed) law school office, but somehow, it was in my home office shelf. For my history PhD coursework in 2000, Professor Joanne Freeman had assigned The Diary of William Maclay, which by then had become so commonly assigned in history classes that it was paperback. Freeman is interested in political culture, and no one was more interesting on Founding political culture than William Maclay. That may be why I kept the diary at home as part of “good political history reading,” and not in my faculty office. Here is my copy from her class 20 years ago:
Maclay’s diary has been cited frequently for his record on the debates over the Judiciary Act and other debates related to executive power. See Clinton v. Jones,520 U.S. 681 (1998) and articles by Charles Warren (1923), Akhil Reed Amar & Neal Kumar Katyal (1995), Tom Lee, Daniel J. Meltzer, Christopher Yoo, and Prakash’s amicus co-author and leading unitary theorist Steven G. Calabresi. See more recently Trump v. Vance, 140 S. Ct. 2412, 2435 (2020) (Thomas, J., dissenting).
Maclay had hidden his diaries, but a family member discovered them after his death. They were first published in 1890, a century after his time in the First Congress. The Documentary History of the First Federal Congress (DHFFC) series made them more widely available in 1988. It is “Volume 9” of the Documentary History of the First Federal Congress that sits in every major law library. Volume 9 includes Maclay’s diary and a detailed description of the Senate debate, as well as some notes on this debate by Vice President Adams and two other Senators, which generally corroborate Maclay’s account. Instead of turning to Maclay’s diary beyond the mere vote count, Prakash instead skipped to DHFFC’s Volume 16 for private letters. It turns out that Prakash then misinterpreted six of those letters (one by VP Adams, two by Rep. Hartley, one by Rep. Smith, one by Rep. Peter Muhlenberg, and one by Rep. Cadwalader, plus a confusing use of one by Rep. Ames) as well as misinterpreting a series of floor speeches, to push the unitary theory far beyond the historical record, as I document in my article. In these linked posts, I contrasted Prakash’s claims or partial quotations with my photos of the full letters.
For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University of Pennsylvania L. Rev. (forthcoming 2022), at SSRN.. I posted a shorter essay on Lawfare in July 2020 with the key passages here.
This post is the eighth in a series identifying the misinterpretation and misuse of historical sources in Saikrishna Prakash’s article on the Decision of 1789. The Supreme Court relied on the unitary intepretation of the Decision of 1789, Justice Thomas cited this article in his Seila Law concurrence, and Prakash co-authored an amicus brief presenting this misinterpretation in Seila Law. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.
The first set of problems in Prakash’s misinterpretation of “the Decision of 1789” is trying to find more votes for the unitary theory, attempting to imply a majority of the House voted for a presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). He misreads Hartley, Cadwalader, and Laurance, and overlooks how Madison and Laurance reflect the rejection of “indefeasibility” in the unitary theory. A second set of problems is mistakenly claiming statements show mixed views or ambivalence by a pivotal bloc of members that some call “congressionalist” but Prakash called “enigmatic.” These members were actually part of the bloc Prakash assumed to be presidentialist, so this argument backfires by showing that the “presidentialist” members were actually more ambivalent themselves, and perhaps they voted strategically.
A third set of problems comes from misreading letters as descriptions of the House debate, exaggerating their description as more presidentialist. The last posts showed Prakash’s misinterpretation of Muhlenberg’s and Smith’s letters. This post addresses his exaggeration of a letter by Vice President John Adams.
Prakash quoted Vice President John Adams to support the same point in the paragraph on William Smith:
The Vice President himself complained that his “Vote for the Presidents [sic] Power of Removal, according to the Constitution, has raised from Hell an [sic] host of political and poetical Devils.” These accounts indicate that the removal language was generally understood to endorse the “constru[c]tion of the Constitution, which vests the power of removal in the President.”
– Prakash at 1066.
The full sentence is: “Myexertions for my Vote for the Presidents [sic] Power of Removal, according to the Constitution.” Letter from John Adams to John Lowell (Sept. 14, 1789), in 17 DHFFC at 1538.
For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University Pennsylvania L. Rev. (forthcoming 2022), at SSRN.