“The Indecisions of 1789”: Prakash’s Misreading of Fisher Ames and John Vining (Part V)

This post is the fifth 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%). Prakash in “New Light on the Decision of 1789” (2006) erred in trying to count Hartley and Cadwalader, overstated Laurance, and failed to acknowledge the significance of both Laurance and Madison rejecting “indefeasibility.”

A second set of problems comes from suggesting that the pivotal (or in his terms, “enigmatic”) members of the House were more mixed or open to both interpretations. His argument is that the pivotal bloc (those who voted for the first Madison proposal but against the second) were not really “congressionalist” but were more open to both interpretations.

Prakash relies not on members from the pivotal “yes/no” members of his “enigmatic” group, but on the members he otherwise depended on to be presidentialist: Fisher Ames and John Vining.

For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University Pennsylvania L. Rev. (forthcoming 2022), at SSRN.

“The Indecision of 1789” (Part III): Prakash’s Misreading of Lambert Cadwalader

This post is the second 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 view in that case. My full paper is here, “The Indecisions of 1789.” The first post in this series is here.

The problem for the ostensible “Decision of 1789” is that it depends on interpreting the votes on Madison’s proposals as a majority of the House subscribing to the presidentialist/unitary interpretation of the Constitution. However, only 16 members out of 53 can be counted for this theory (i.e., just 30%). In fact, a supermajority of the House voted against this view. In an effort to revive this theory, Saikrishna Prakash in “New Light on the Decision of 1789” (2006) suggests that there may have been more. But his effort to identify more depended on a series of misinterpretations and clear errors. The second on this list is Lambert Cadwalader.

Lambert Cadwalader voted “no” on both of the Madison/Benson proposals on June 22, before voting “Yes” only on the final bill. 1 Annals 604, 608. He is the only member who voted No/No/Yes. Only one other member voted against both of the Madison/Benson proposals, and that member, Tucker, was vocally opposed to presidentialism. These votes indicate that Cadwalader was opposed the entire Madison/Benson approach.         

         Nevertheless, Prakash claimed Cadwalader was a presidentialist because one of his letters revealed his presidentialist views. However, this letter did not. Prakash wrote that Cadwalader, in a letter to James Monroe two weeks after the vote, “noted that the final language was ‘scarcely declaratory’ of the removal power ‘being vested in the President by the Constitution,’ suggesting that he favored the earlier language precisely because he regarded it as an express declaration in favor of the executive-power theory.” Prakash at 1060-61.

For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University Pennsylvania L. Rev. (forthcoming 2022), at SSRN.

See the letter below:

Letter from Lambert Cadwalader to James Monroe (July 5, 1789), 16 DHFFC 946-47.

“The Indecisions of 1789”: Prakash’s Misreading of John Laurance and James Madison (Part IV)

John Laurance was another member who voted “yes,” “no,” “yes,” and thus falls in the pivotal group, which Prakash labeled “enigmatic.” Prakash erroneously claimed him as a presidentialist. Initially, Laurance’s speeches had been mixed when members who favored some kind of presidential removal were free to make mixed arguments. But by the decisive day when Madison’s proposal pushed members to take a side (June 22), Laurance clarified his position as a moderate congressionalist, with a only a limited degree of Article II power. He believed Congress had some power to limit presidential removal, but not the power to go so far as “good behaviour” tenure like judges. This view is consistent with the good-cause conditions in modern independent agencies

In a seeming concession, Prakash acknowledged that the House debate had not endorsed the unitary theory of “indefeasibility,” i.e., that Congress has no power to regulate presidential power. However, both Laurance and Madison indicate that the House rejected indefeasibility and favored Congress’s power to set conditions. In fact, just a week after this key debate over the Foreign Affairs department, Madison proposed a Comptroller protected from presidential removal in the Treasury bill.

Prakash’s discussion of John Laurance opened with this sentence: “In fact, the comments of other members of the enigmatic faction who spoke on June 22, 1789 suggest that, like Boudinot, they too endorsed the executive-power theory.” Prakash at 1053. And he concluded his discussion with this sentence: “Consequently, Laurance arguably voted for the final bill for the same reason Boudinot did: because it endorsed the executive power theory.” Id. at 1054. These conclusions do not fairly reflect the record. In a footnote, Prakash is more balanced: “Laurance’s comments are much more equivocal.”Id. at 1054 n.218.This description is more accurate, but it is buried in a footnote.

            The bottom line is that Laurance was more congressionalist than presidentialist, that Laurance did not give the “same reason” as the presidentialist Boudinot, and he is best described as a moderate congressionalist. His speeches are mixed, but his opening explanation for voting no on Madison’s second proposal on the pivotal day (June 22) was his clearest statement, and it was a statement of congressionalism. He also makes a confusing reference to “the constitutional power of the president,” a sign that he saw a limited degree of implied presidential powers. The records are fragmentary, so it is hard to know precisely what Laurance meant. The best reading of the speech was that Laurance was a moderate congressionalist, giving primary weight to congressional authority, with only secondary (and more limited) weight to an implied presidential power. Here is Laurance’s entire speech:

11 DHFFC p. 1034 (reprinting Congressional Register from June 22, 1789)

For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University Pennsylvania L. Rev. (forthcoming 2022), at SSRN.

The Indecision of 1789: Misreading Thomas Hartley (Part II)

This post is the first in a series identifying the misinterpretation and misuse of historical sources as part of an originalist revival of the unitary executive theory and the Decision of 1789. The full paper is here, “The Indecisions of 1789.” The first post in this series is here. A paper on the misuse of Blackstone in the unitary executive Seila Law amicus brief and scholarship is here.

The problem for the ostensible “Decision of 1789” is that it depends on a majority of the House subscribing to the presidentialist/unitary interpretation of the Constitution, but only 16 members out of 53 fit this bill. In an effort to revive this theory, Saikrishna Prakash in “New Light on the Decision of 1789” (2006) suggests that there may have been more. But his effort to identify more depended on a series of misinterpretations and clear errors. The first on this list is Thomas Hartley.

Prakash describes Rep. Thomas Hartley as “a member of the enigmatic faction” who “was not opposed to the executive power theory.” Prakash at 1054. Prakash asserts, “Nothing in Hartley’s earlier speeches indicated a clear endorsement of the congressional-delegation theory. Nor is there a clear opposition to the executive-power theory.” Prakash at 1055 n. 223. This reading of Hartley’s speeches is inaccurate. Prakash cites Hartley’s speech on the pivotal day, Monday, June 22. The short speech is here, and it is clear:

Now here is Prakash’s misleading description of Hartley’s speech and false claims about Hartley’s later letters:

For more analysis, see the Appendix in my article, “The Indecisions of 1789: Inconstant Originalism,” 171 University Pennsylvania L. Rev. (forthcoming 2022), at SSRN.

The Indecision of 1789: Unitary Originalists’ Misuse of History (Part I).

In a draft paper (“Removal of Context” here) an an earlier series of posts (especially Part II, Part III, and Part VI, I showed a large number of misreadings as well as a serious misquotation of Blackstone in a recent Supreme Court amicus brief by major originalist unitary executive theorists. The “unitary executive” is the label for a theory of maximal presidential power that is now in vogue on the Roberts Court, and it is a myth that has been revived partly because of a series of mistaken assumptions and partly because of the misuse of historical sources. This series of posts will document an even larger number of misreadings of sources from the first Congress to revive the “Decision of 1789.”

The article with these errors, “New Light on the Decision of 1789,” was written by one of amicus co-authors, Saikrishna Prakash. The article was cited by their amicus brief. Justice Thomas cited it in his pro-unitary concurrence, and the Roberts majority relied heavily on the Decision of 1789 in Seila Law in June 2020. I posted a draft of my article identifying most of these discrepancies in May 2020. Here is an updated version of that draft, called “The Indecision of 1789: An Originalist Cautionary Tale.” I summarize that article very briefly here. Appendices at the end detail the relevant votes and the misreadings of original sources in “New Light.”

The “Decision of 1789” is the name for the erroneous claim by unitary theorists that the first Congress, in the summer of 1789, passed a statute to signify and establish that the President has a power to remove executive officers (perhaps any and all executive officers), not merely as a grant from Congress, but as an interpretation of Article II of the Constitution. Even though the Constitution is silent about removal and gives the Senate a power over appointment, the unitary theorists claim that the first Congress interpreted the Vesting clause and the Take Care clause to imply a complete and exclusive presidential removal power that Congress may not limit (i.e., the power is said to be “indefeasible,” and independent agencies and independent prosecutors are unconstitutional. 

The problem with the “Decision of 1789” myth is a matter of text, of history and of basic math. 

The unitary theorists’ claim – and the statute itself – are both so convoluted that it should have raised sufficient doubt a long time ago. Because the Constitution was silent on removal (does “textual silence” sound familiar, Justice Kavanaugh?) and the original-public-meaning evidence from the Convention, the Ratification debates, and the Federalist Papers is squarely against their theory (as I show here, here, and here), they stretch words like “vest” or “take care,” and they turn to a time too early and far away (English royal practice, which also turned out to be full of their erroneous interpretations, and also turn to a time arguably too late: post-Ratification congressional practice and legislative history. It turns out that this legislative history is what textualists warn us about: It is a confusing strategic mess. 

My apologies for the confusion, but this is the best I can do to concisely summarize such a counter-intuitive, convoluted, and internally contradictory argument, which relies on votes being simultaneously “enigmatic” and clear. I am not exaggerating.

In May 1789, Madison proposed the Foreign Affairs bill, with language that provided that the Secretary would be removed by the President. A committee recommended language in June 1789, reflecting Madison’s proposal: 

[T]here shall be established . . . the Department of Foreign Affairs, at the head of which there shall be an officer . . . to be removable by the President.

After four full days of debate, the House adopted this language on Friday, June 19. Then, on Monday, June 22, Madison suddenly reversed course, and proposed replacing the existing language—which clearly gave the President the removal power—with strangely unclear language: 

[T]here shall be an inferior officer . . . who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall during such vacancy have the charge and custody of all records, books and papers appertaining to the said department.

As a textualist matter, this new clause does not suggest the source of such a removal power, not does it state that such a power actually exists. This new clause could be read as assuming a pre-existing removal power, or alternatively, foreseeing that a future Congress or President might assert a removal power against a department head, validly or invalidly, in which case, a contingency plan with a back-up officer already already would be in place. Of course, constitutions famously had preambles, but so did some of the first Congress’s statutes – they contained explanatory clauses to provide background and purposes of a statute. However, Madison and his allies chose to provide no constitutional explanation for their text. Instead, they used floor speeches to explain a deliberately ambiguous text. 

Madison and his allies pushed for three key votes that they claimed would communicate an interpretation of the Constitution: A first vote to add this ambiguous language; a second to remove the explicit “removable” clause (both on Monday, June 22); and a third (on June 24), to pass the bill. If you are confused by this strategy, you are not alone. Madison’s House colleagues were at first confused, but then they relentlessly mocked this strategy as a sign of weakness. They knew that Madison and the unitary theory did not have the votes. Both Madison’s allies and opponents said so, and some even hinted that the real problem was that the Senate would not pass a bill that explicitly surrendered their power. A more ambiguous statute might sneak through the Senate. The new language was ambiguous enough for Madison to claim that it hinted a constitutional interpretation, but his Senate allies would take advantage of its ambiguity to squeak it through with obfuscation.

The unitary theorists claim that the passage of this statute was the “Decision.” The problem is that Madison’s strategy divided and conquered the opposition, using shifting coalitions (reminiscent of the Condorcet paradox) to win each vote. The House divided into three voting blocks: 

A first bloc of 13 voting yes, yes, and then yes on the final bill. This block was generally “presidentialist” (or “unitary”), because, following Madison and Benson, they were replacing an explicit grant with the more ambiguous language.

A second bloc of 13 voting yes, no, and then yes on the final bill. This block was generally “congressional,” because congressionalists would vote “yes” on step 1, because that was merely adding the back-up plan as an extension and clarification of that congressional delegation. But they voted “no” on step 2 in order to keep the original explicit grant (a congressional delegation, not a constitutional rule).

A third bloc of 16 voting no, yes and then no on the final bill. This block was “senatorial” because they wanted neither clause: voting no to reject the ambiguous/implicit removal language, and voting yes to remove the explicit removal language.

Eleven others had a more mixed voting pattern or missed some votes, but their speeches or votes roughly sort out among the three groups (or tiny group who thought impeachment was the only constitutionally-permitted method of removal).

For there to have been a presidentialist “Decision of 1789,” there is a math problem: How can that bloc of 13 yes/yes/yes votes come close a majority view of the House, when 53 members participated? Where can one cobble together more than a dozen other votes? There were not enough recorded speeches to know the views of most of the members, especially because the votes did not split the presidentialists from the congressionalists until the Madison/Benson amendments on one day of debate, Monday, June 22d. Up until that day, members could make both kind of arguments in the same speech in favor of presidential removal, whether based on the Constitution’s text of Article II… or on Congress’s Article I powers.

Thus, the passage of the final bill is not evidence of any constitutional theory prevailing. Some combination of presidentialists and congressionalists reformed a coalition to pass it, despite disagreeing on the theoretical questions. There has never been a head count of these votes based on constitutional interpretation, not even in the famous debate between Chief Justice Taft vs. Justice Brandeis in Myers, and not even Sai Prakash’s revival of the argument in 2006. My research offers a head count, as much as possible from the speeches, letters, and vote patterns – and it shows that the House did come close to a unitary consensus, and it also shows a remarkable pattern of misinterpreting those sources. 

Despite the second group (the yes/no/yes group) including most of the vocal congressionalists, Sai Prakash called this group “enigmatic” because he suggests some of them may have still been presidentialists, but voted to keep both clauses for the sake of clarity. In Prakash’s favor, there was one such member who clearly gave this explanation. But many more rejected that view in favor of congressionalism. Prakash does not account for the possibility that some of the 13 yes/yes/yes members could have been similarly “enigmatic” or strategic: voting for strategic ambiguity to get their bill through the Senate by obscuring the removal position. Some hinted at such a strategy on the House floor, which makes sense: The Senate was in the middle of fighting with the House on a number of issues. 

Thus, if one can question whether every yes/no/yes vote was based on congressionalist principle, one can also question whether every yes/yes/yes vote was based on presidential principle. But even if one sets aside this question, my re-reading of the votes and sources shows that only 16 members in favor of presidentialism. On the other hand, 16 were “senatorial,” seven were explicitly congressionalist, and eight others were silent about their reasons, but they voted more like congressionalists, and it is more likely that they were congressionalist or pragmatists rather than presidentialists.

There is an internal contradiction in this unitary argument: It depends on this group being “enigmatic” and unclear, and then speculating about their intentions, but these originalist arguments depend on claiming a clear original public meaning. Even if this group’s intentions were truly enigmatic, how could speculation about their votes establish or reflect clear public meaning?

But that’s not the point of this post. The problem is that in Prakash’s effort to find more votes (or more explanations) for his theory, he misinterpreted sources and miscategorized members, adding up to a problematic treatment of eight different members (including Vice President Adams as a member). Here is a summary of the problems with his arguments:

Again, only 16 members (30%) can be categorized as “presidentialist.” (It may be fewer if some were just voting for strategic ambiguity, but let’s set aside that question. Prakash tries to find more votes beyond those 16, and he makes a series of stark mistakes and misreadings of the historical record:

1. Of the roughly 13 to 15 members of the pivotal bloc, the “presidential” theory would depend on counting 12 or 13 of them to get to a majority of the House voting membership (over 90%). Only two can be counted as presidentialist: Boudinot and Fitzsimons, bringing the total to 16 of 53. Prakash attempts to add three more: Thomas Hartley, John Laurance, and Lambert Cadwalader. Prakash suggests that if these three were also presidentialist, one could make a broader inference about the entire bloc. The evidence Prakash cites does not support such claims about these three. Two were congressionalist, and a third was very likely congressionalist and voted against both of Madison/Benson proposals. Thus, the inferences point in the opposite direction (towards congressionalism) for the bloc.

2. Prakash cites Fisher Ames and John Vining as two examples of the pivotal or enigmatic “yes/no/yes” bloc having mixed views. Unfortunately, both were “yes/yes/yes” voters in favor of the Madison/Benson proposals. Thus, their mix of arguments points in the opposite direction: Some of the “yes/yes/yes” bloc that was generally more presidentialist may have been mixed, and perhaps some were voting more for strategic ambiguity to get the same bill through the House and Senate, rather than voting decisively for a constitutional theory.

3. Prakash cites observers of the debates describing a more presidentialist consensus. The evidence from Peter Muhlenberg, William Smith of Maryland, and Vice President Adams does not support such a claim.Meanwhile, many other participants and observers raised concerns about whether anything was decided by these votes.  

The next blogposts will detail each of these members, Prakash’s misinterpretations, and the original sources.

“Removal of Context,” Part VII: “The argument is simply a disagreement with the Constitution” and the Problem of Originalism Hubris

In the next series, I will discuss another error in the Seila Law amicus brief, the assertions about Madison’s Comptroller Proposal in late June 1789, when I discuss Prakash’s misreadings of speeches and letters from 1789 in his 2006 article “New Light on the Decision of 1789,” more like “The Unbearable Lightness of the Decision of 1789,” or “The Indecision of 1789.” For now, let it suffice to say: Yet another unequivocal claim in their brief is wrong, even if this error is more understandable due to the fragmentary nature of this debate (but isn’t that a frequent problem with originalist evidence?):

“This is a misreading of Madison’s position… But he did not propose any restriction on the President’s removal power… [Madison’s proposal] not derogate the President’s power of removal.” Amicus p. 24

In fact, their amicus brief is the one with the the misreading, as I explain here (“The Indecisions of 1789,” at p. 37-43, building on outstanding research by Jane Manners and Lev Menand here.

Speaking of excessive certainty and lack of self-awareness, the amicus brief included this remarkably hubristic passage:

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, & Jed Handelsman 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.

– Amicus p. 17

Remarkably, the amicus brief writers, after making a staggering number of misreadings and even misquotations, had the chutzpah to claim that we were not interpreting evidence, but were merely “disagreeing with the Constitution,” as if their interpretation was “the Constitution” itself. It turns out that their brief included a litany of ahistorical assumptions and errors. And quite a bit of originalist hubris and over-confidence.

“Removal of Context,” Part VI: Historical Evidence Against Royal Removal Power

The Seila Law brief makes some bold historical claims about the background of English practice with some strong language:

The power to remove principal executive officers was one of the few royal powers not explicitly discussed, but 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.

Amicus 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, which the Constitution assigns to the President. Blackstone wrote that the king is “the fountain of honour, of office, and of privilege.” Amicus at p. 9

By now, it should be clear that the authors did not have much evidence to support these claims. Otherwise, they would not have needed to rely on (and misinterpret and misuse) Blackstone’s word “dispose” as removal (see Part II here), nor would they need to misquote Blackstone by changing his statement of uncertainty about the law of offices into certainty. (see part III here). My paper shows evidence to the contrary, relying on a series of books on early modern English administration.

One of the Seila amicus co-authors, in his other work, actually cited (and misinterpreted) a book that offers strong evidence in the opposite direction, and indeed raises significant “questions.” More recent research also shows that the king did not have a general removal power.

Sai Prakash does not cite Blackstone in the section of his book (Imperial from the Beginning) on removal, but he does cite him earlier and highly selectively to support George III’s claims of royal “primacy”: “Blackstone had stressed the Crown’s personal exercise of power, writing that the Crown was not only the ‘chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him.’” Prakash, Imperial at 29. The key word here was “magistrate,” Blackstone’s semi-synonym for executive. It is either a misunderstanding or a misuse of Blackstone to suggest that he more generally supported royal “primacy” when Blackstone more thoroughly stressed parliamentary sovereignty and supremacy. 

On the same page Imperial from the Beginning, Prakash cited G.E. Aylmer’s The King’s Servants as support for his own assertion: “Because most executives served at pleasure, the Crown could remove most officers without cause.” Prakash at 29. First, isn’t it a problem for the brief that it is only “most,” and not all or almost all? “Most” means some discretion to protect officers from removal, which is the rule under Humphrey’s Executor, contra the unitary theory’s absolutism. But far more problematic, the pages he cited either did not discuss tenure during pleasure or removal, or the pages stated the opposite: life tenure and even more protection for many executive ministerial offices than that which judges held. One part of a sentence on a page he cited states that “most of the great offices of state and the judgeships of King’s Bench and Common Pleas, were held during the King’s pleasure,” and later, Aylmer discusses how Secretaries of State served at pleasure. However, “great offices of state” and the Secretaries of State are the equivalent of the cabinet and department heads, as discussed above; and if Aylmer says only most of such cabinet level officers served at pleasure, does that not imply that some cabinet level secretaries had greater protection against removal? Is this not strong evidence against an assumption in the brief that the king must have had the power to remove any “great office of state” cabinet level official at pleasure?

The same passages in Aylmer discuss high executive offices like Chancellorship of the Exchequer In fact, the introductory sentence in this passage states, “It is difficult to generalize about the security of tenure” in the middle of a discussion of life tenure offices along with tenure during pleasure, and soon after his observation that “ministerial officers, being the Crown’s executive agents… might properly hold for life.” One of Aylmer’s most interesting findings is that seventeenth-century Stuart England offered more protection for many executive ministerial offices than that which judges held. Aylmer’s other books on later eras reflect the same job security of executive officers against removal. The rest of the chapter (pages 106 to 125) suggests that it was common for other executives below the cabinet level to have life tenure or good behavior tenure. I can find nothing in these pages supporting the broader claim made by Prakash on p. 29. I am not making a positive claim of any general rule; I am noting that Aylmer states plainly that “it is difficult to generalize” and find a general rule. I do not understand how Prakash is able to generalize from Aylmer when Aylmer explicitly declined to do so in these pages, and in fact, Aylmer’s section on tenure of office suggests the opposite of the claims in the brief: the Crown had only limited removal power over executive offices. These mistakes rise to the level of misuse of both Blackstone and secondary historical materials, as well.

(Note: Prakash cites pages 106 to 110 of the 1974 edition, and I am using the 1961 edition, which appears to track the same pagination that Prakash cited. Both editions have 521 pages of text, and the only difference appears to be the preface (xii pages in 1961, xviii pages in 1974) according to WorldCat. If the two editions are substantially the same, the problem is that the pages Prakash cites do not support a claim that “most executives” served at pleasure. I have sent Prakash a letter on October 15 to address this lack of support. If the issue the 1961 vs. 1974 editions, I have not received a reply as of Dec. 6, 2021. I am trying to track down the 1974 edition now.)

Last Wednesday, Ilan Wurman wrote his acknowledgment of the “dispose” error but non/acknowledgment of the misquotation of Blackstone’s “I do not know,” he 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…

To the contrary, I offered this evidence from Aylmer and Chester in that same paper, “Removal of Context.” It is troubling to see it dismissed so swiftly, especially after so many errors have been identified in the brief. And other recent historical evidence (see Manners & Menand, The Three Permissions: Presidential Removal and the Statutory Limits on Independence, Columbia L. Rev. 2020) raises many other doubts

“Removal of Context,” Part V: Contradicting Claims About “Executive Power” and Removal

This post is a part of a series on the errors and misquotations in a Seila Law amicus brief by some of the most prominent originalist scholars and supporters of the unitary executive theory. It is increasingly clear that the unitary executive theory is built on sand, a collection of ahistorical assumptions, errors, and misreadings of soures. see Parts I, II, and especially Part III (the earlier Blackstone misquote) and Part IV (other misuses of Blackstone) below. And there are more posts still to come.

Here is another unsupported claim in their brief:

“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)

Read this paragraph again. It is mystifying and actually proves the opposite point. Did Blackstone or eighteenth-century English law clearly distinguist between executive and judicial power? The second sentence contradicts the basic point that these scholars were making in their brief: Because the king could not exercise “the whole executive power of the laws,” according to Blackstone, the king created courts. The implication is that the king created courts to help exercise executive power. How did the authors write this sentence wihtout pausing and thinking, “Wait. Maybe the English did not have the clear distinction between executive and judicial power that we have assumed.” Not only are these scholars having a hard time reading Blackstone correctly. It seems they are having difficulty writing their own sentences to be consistent with their ideological assumptions about a formal, clear, and categorical meaning of “executive.” It’s astonishing.

Here is the full quotation from Blackstone, and indeed, it indicates that judges were considered part of the executive power and law execution, with four different references to “execution” as the power that the courts perform or assist, and yet, these judges were protected from removal at pleasure:

The original power of judicature, by the fundamental principles of society, is lodged in the society at large; but, as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more
case and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature; for, though the constitution of the kingdom hath intrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary that courts should be erected to assist him in executing this power; and equally necessary that, if erected, they should be erected by his authority. And hence it is that ull jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king’s name, they pass under his seal, and are executed by his officers.

1 Blackstone 266-67 (or 257 in other editions)

Somehow the unitary scholars thought this passage supported their point about executive power being subordinate under the king: “Other parts of Blackstone likewise indicate that the power to appoint, control, and remove officers was part of ‘the executive power.’” If judges were part of their conception of executive power, then clearly the English king did not have the power to remove these “executive” magistrates and officers. If the point is that the American Constitution was also different from England’s… well, that is precisely the point. The U.S. Constitution was a decisive break from monarchy and royal absolute powers.

At this point, it appears that the unitary scholars somehow got lost in both the forest and in the trees with Blackstone: Lost in the details of Blackstone, they repeatedly misread and misquoting his sentences. But what are they doing in the Blackstone rabbit hole in the first place? Why is the English king the obvious model for the Framers’ view of executive power? If they think Blackstone shows a clear original public meaning of executive power, this passage contradicts them, because the English thought executive power included judicial power.

This Blackstone page was the only citation to support a sentence about “other parts of Blackstone” on “the power to… remove officers,” and this section is entirely about judicial offices and the limitations on royal removal power, with no implication about other offices and a more robust removal power over them. It is unclear how the second sentence on courts relates to the first sentence on executive removal, nor is it clear why the brief cites this page at all. This confusion raises doubts about whether amicus, in fact, could find other parts of Blackstone indicating a general power to remove officers. To the contrary, other parts of Blackstone indicate limits on royal removal power over executive offices.

In fact, Blackstone only twice mentions the tenure term “durante bene placito” (service at pleasure), the kind of tenure assumed by unitary theory. The first use was about the rejection of tenure during pleasure — in favor of tenure during good behavior for judges. The second use was for sheriffs. The English term “at the pleasure” appears only in reference to a church office and military offices,[1]  while “during pleasure” does not appear at all in Blackstone. Royal removal power was not a given, and nor was tenure “during pleasure.”

Next up: The missing and misused evidence to the contrary: These scholars cited a historian who actually showed king did not have a general default removal power.

“Removal of Context,” Part IV: Conflating the English Cabinet of the “Great Officers of State” with America’s many, many “principal officers”

See Parts I, II, and especially Part III (the earlier Blackstone misquote) below.

Great Officers of State, Subordinate Magistrates, and “Principal Officers”

Now we come to a remarkable confusion in the Seila Law amicus brief: The English “principal secretary” (i.e., a cabinet member) is not the equivalent of the U.S. Constitution’s “principal officer” (which the amicus extends to the CFPB director and beyond). It’s a revealing historical confusion in their argument.

Blackstone’s categories simply do not track our modern American categories, and there is still confusion about how many hundreds, or perhaps after Lucia v. SEC (2018) and Arthrex (2021), [1] now thousands of administrative officers are “principal officers.” Blackstone was referring more to the dozen or so highest officers in England – Secretaries of State and the like – and not anything close to the legions of principal officers in the U.S. Constitutional system of Article II.

It helps to put Chapter Nine in context, compare the word “secretary” elsewhere in the Commentaries, and then read the full three paragraphs introducing this chapter on “subordinate magistrates.” Book One of the Commentaries is titled “The Rights of Persons,” but the book starts more about the powers of government officials. Chapter Two is on Parliament, followed by Chapter Three on the King, reflecting Blackstone’s emphasis on parliamentary supremacy. After a chapter on the royal family, Chapter Five is “Of the Councils Belonging to the King,” followed by chapters on the king’s duties, prerogatives, and revenue. Picking up after Chapter Five on the councils is Chapter Nine, “Of Subordinate Magistrates.” They seem to be constructed as complements: Chapter Five lists specific high councils and offices: Parliament, the aristocratic Peers, the judges and courts of law, and then “the council,” or the privy council. Blackstone explained that the privy council had grown too large, so Charles II set it back to thirty in 1679, “whereof fifteen were to be the principal officers of state,” ex officio, “and the other fifteen were composed of ten lords and five commoners of the king’s choosing.” The number had increased since then, but apparently from the other descriptions in the Commentaries, this was due to the increase of additional appointments of lords and commoners, not an increase in secretaries.   

First, Joseph Chitty, the commentator on the 1826 edition of the Commentaries, added a note to this paragraph on the privy council, describing its “offices of state” or “great officers” as limited to “the cabinet.” Chitty listed roughly fourteen officers, including “the lord-high chancellor,” “the first lord of the treasury,” and “the secretaries of state for the home department, colonies, and foreign affairs.”[2] This note suggests that there were only a handful of “high officers” or “principal secretaries.” Blackstone himself used the word “secretaries” in the context of the highest offices, the “secretaries of state” on the same level as the judges of King’s Bench and “the attorney and solicitor general.”[3] The evidence suggests that “great officers of the states” and “principal secretaries” were comparable to the American “department heads,” i.e., secretaries of departments and members of the cabinet. Even if Blackstone were claiming that the king had complete removal power over these “great officers,” it was not analogous to a removal power over any principal officer in an American context.

Speaking of context, it helps to read the other sentences around this single misinterpreted sentence to clarify who were the “great officers of state.” In the opening paragraph preceding the one we have been focusing on, Blackstone writes, “[We] are now to proceed to inquire into the rights and duties of the principal subordinate magistrates” (italics in the original). Some of those “principal subordinate magistrates” would have protection against removal, and did not serve at the king’s pleasure. It seems even more plausible that “principal subordinate magistrates” might track the principal officers mentioned in Article II, but who were not “department heads,” as mentioned in Article II. If so, then Blackstone provides evidence that “principal subordinate magistrates” included coroners, who had mixed executive and judicial functions, and were protected from removal. It seems plausible that other “principal subordinate magistrates” in this section did not serve at the king’s pleasure. Did Blackstone mean “principal” in the sense of their power or in the sense of being the “main example” or “primary example”? This category of “principal subordinate” officers would include those with protections against removal. One cannot claim from these paragraphs that they establish a rule in favor of removal protections against the king, but nor can one claim they establish a rule in favor of royal removal over high-level officers below the cabinet level.

Blackstone wrapped up the introduction by listing the officers that will be investigated: “sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor.” And then he listed the topics of inquiry: “first, their antiquity and origin[]; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties.” Indeed, Blackstone focused on appointment and removal in this chapter, with different limits on removal. Blackstone reflects a range of removal rules and a lack of a default rule. Blackstone’s focus on the specific case-by-case circumstances of offices, tenure, and removal suggests that the removal power operated on a case-by-case basis, and no general rule of executive removal. For more in-depth analysis of Blackstone, see Daniel Birk’s “Interrogating the Historical Basis for the Unitary Executive,” Stanford Law Review, 202 & passim, and Manners & Menand, supra.

The point is not the Blackstone’s Chapter Nine clearly refuted a unitary executive claim that 18th-century England’s rough equivalent of Article II “principal officers” served at the king’s pleasure; the point is that Chapter Nine is unsurprisingly unclear on these terms and cannot be relied upon to support such a claim in the Seila Law brief. It was an error to rely on Blackstone at all for such broad claims beyond the highest cabinet-level Secretaries and “great officers of state.”

[1] See U.S. v. Arthrex (2021); Lucia v. SEC, 138 S. Ct. 2044, (2018).

[2] https://oll.libertyfund.org/title/sharswood-commentaries-on-the-laws-of-england-in-four-books-vol-1#lf1387-01_footnote_nt684

[3] *168

“Removal of Context,” Part III: Misquoting Blackstone in Seila Law Amicus

Today, I posted a draft of my paper on SSRN here: “Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism,” forthcoming in the Yale Journal of Law & the Humanities, 2022. In an earlier post, I introduced a series of concerns about a series of misinterpretations of historical sources by unitary executive scholars to try to establish a general presidential removal power. In “Part II: Blackstone and ‘Dispose’ as ‘Remove’ in Seila Law Amicus,” I focused on one error in a 2020 amicus brief in the Supreme Court case Seila Law v. CFPB. brief, misinterpreting Blackstone. That discussion sets up this post, Part III, the next error in the same set of passages.

In this post (“Part III,”) I focus on a misquotation of Blackstone iI think this is the most problematic example, a Supreme Court amicus brief misquoting Blackstone by selectively deleting important words and moving the word “not” to reverse the meaning of the quoted sentence. Their brief is linked here. You can find the relevant passages from Blackstone following this link.

Let me first repeat what I wrote in an earlier post: As I told the co-authors in my letter on Oct. 13, I believe these misinterpretations were in good faith. I also acknowledged that I have made good-faith errors in an amicus brief myself, and I understand all too well how these sources can be misread.  See my apology here. See one of the Seila Law co-signers for his generous post here: Michael Ramsey, “Jed Shugerman Apologizes to Tillman and Blackman (Updated).”

      My chief concern is how the Seila Law brief repeatedly misuses Blackstone and relies on scholarship that similiarly misinterpreted historical sources. The brief altered Blackstone’s words to change his meaning. I am also concerned that the reliance on the Decision of 1789 is problematic, because Sai Prakash’s “New Light on the Decision of 1789,” 91 Cornell L. Rev. 1021 (2006), cited in the brief and then cited in Justice Thomas’s Seila concurrence, relies upon a series of misreadings of the historical sources and miscategorizations of multiple House members. I document my concerns here in this draft, “The Indecisions of 1789: An Originalism Cautionary Tale.”

      The Seila Brief’s affirmative historical case is in Part I, which has two parts: A. “The English Constitutional Backdrop,” which relies more on Blackstone than any other source (p. 3 and from p. 6 to 11); and B. “The Decision of 1789,” through which the brief explicates and validates its interpretation of Article II (p. 12 to 19). The remainder of the brief rebuts arguments about the First Congress and then criticizes Humphrey’s Executor. It is fair to say that the brief’s two most significant sources are Blackstone and the First Congress. My point is that these errors are not marginal, but they are part of the central structure and substance of the brief.

As the previous post (Part II) explained, the brief first misinterpreted Blackstone’s use of the word “dispose” as “remove,” when Blackstone was using the word consistently in the opposite way, to distribute or appoint to office, not remove. Now we move to the second misinterpretation in the amicus brief’s passages on Blackstone: Misquoting Blackstone on “Subordinate Offices.” The brief claimed that Blackstone “explained that these offices are not ‘in any considerable degree the objects of our laws.’” But Blackstone had put that “not” in a very different place. Blackstone’s meaning was the reverse of the meaning the brief gave this passage: from his non-statement to statement, an explict statement of uncertainty about X to a statement of X.

Here is the relevant passage from the brief, with the problematic descriptions in bold: 

“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.” Id. at *327. In other words, the principal officers of state were executive, not legislative, creatures.

– Amicus brief p. 8

In a follow-up article “In Search of Prerogative,” Wurman similarly elaborated, misquoting this same sentence out of context: “[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, p. 142 n. 205.

Unfortunately, these quotations make selective edits and deletions that change Blackstone’s meaning from uncertainty to certainty, and they leave out Blackstone’s alternative sufficient explanation.

This is the full quote from Blackstone, from an introductory paragraph of Chapter 9, with the important omissions in italics:

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 know that 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.”

– Blackstone at *327

The deletions fundamentally change the meaning, plus there is a fourth problem of context about the assumption that “great officers of state” can be equated to “principal officers.”

         The first two deletions change the meaning from a statement of uncertainty to a statement of fact. Blackstone was not asserting a claim about removal or any other power; Blackstone was saying explicitly “I do not know” X, and thus “we are not to investigate” or discuss X here. It was not part of the substance on subordinate magistrates, but rather, a prefatory or introductory sentence about what would not be covered in the chapter. It is odd to cite this as evidence. Blackstone’s phrasing suggests or hints that they probably are not protected from removal and serve at the king’s pleasure, but he is avoiding saying so and avoiding any specifics about which offices. In Chapter Five, Blackstone wrote that the privy council serves at the king’s pleasure, but one can infer here that Blackstone is unsure how far “at pleasure” control extends as a matter of law: the treasurer? Which principal secretaries? 

         The next deletion of “or have any very important share of the magistracy conferred upon them” also changes the structural meaning, because the “or” is logically significant as an alternative explanation. Blackstone indicates that he is “not investigating” or discussing these high offices in a chapter on “subordinate magistrates” because, at least in part, they are not magistrates, regardless of their status as “objects of law.” Blackstone had defined magistracy as “the right of both making and of enforcing the laws,” which is  a curious combination of legislative and executive power. 1 Blackstone *146. It makes sense in a book on law and legal offices that Blackstone would set aside offices that he did not think were law-related, and this subject-matter modesty was his independent sufficient reason for “not investigating” those offices in this chapter, separate from whether the offices were “objects of our laws.” Moreover, it is not obvious that “objects of our laws” in this section necessarily would refer to removal or protections against removal. One can infer it from the topics of the chapter, but it is far from clear evidence. But the most fundamental problem is that the brief was using Blackstone to make a positive factual claim, even though Blackstone was plainly acknowledging uncertainty and lack of knowledge. Blackstone as a legal expert was understandably more interested and more familiar in his Commentaries on the Laws of England in investigating legal officers, and he may have been admitting less knowledge or less focus on non-magistrates with other administrative roles (such as in finance, foreign affairs, religion, etc.) Simply as a matter of either/or sentence structure, one simply cannot cite this sentence as a statement of historical fact about the Crown’s power of removal.

Next up: “Disagreeing with the Constitution”?