“The Indecisions of 1789”: The Curious Absence of Senator Maclay’s Diary (Part IX)

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 also Clinton 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.


“The Indecisions of 1789”: Prakash’s Misreading of VP John Adams (Part VIII)

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: “My exertions 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.

“The Indecisions of 1789”: Prakash’s Misuse of William Smith of Maryland (Part VII).

This post is the seventh 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 post showed Prakash’s misinterpretation of Muhlenberg’s letter. Prakash also cited William Smith of Maryland to suggest a presidential meeting of these votes:

“Contemporaries saw the Senate vote to retain the House’s removal language as a vindication of the executive-power position… Representative William Smith of Maryland described the Senate vote as favoring the President’s “right of removal from office as chief Majistrate [sic].”[1]

However, this letter focused on rejecting the senatorial view, rather than endorsing the presidential theory of Article II over the congressional theory. Prakash also failed to mention Smith’s acknowledgement that the debate did not address or resolve other departments and other offices:

Letter from William Smith (Md.) to Otho H. Williams (July 27, 1789), in 16 DHFFC at 1150.

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.

“The Indecisions of 1789”: Prakash’s Misuse of Peter Muhlenberg (Part VI)

 

This post is the sixth 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 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.

Prakash over-reads a letter from Rep. Peter Muhlenberg to Dr. Benjamin Rush claiming a majority of the House subscribed to presidentialism. He first quotes Muhlenberg:

Though a ‘Considerable Majority of The House have determined that the power of removal is vested solely in The President as The Chief Executive Magistrate,’ this majority was divided. According to Muhlenberg, one group thought it was the “duty of the Legislature to declare by Law where this power is Lodgd, in order to prevent Confusion hereafter.” Presumably, these were the executive-power partisans who voted to reject Benson’s second amendment.[1]

– Prakash at 1058

First, Prakash does not remind the reader that Muhlenberg was a yes/yes/yes presidentialist himself, and thus might not be the most reliable and neutral observer. Second, his letter offers more of a congressional interpretation:

-Letter from Peter Muhlenberg to Benjamin Rush (June 25, 1789), in 16 DHFFC (Correspondence), at 856.

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 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.