“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”?

“Removal of Context,” Part II: Blackstone and “Dispose” as “Remove” 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 the course of writing this paper, I have found a series of misinterpretations of historical sources by unitary executive scholars to try to establish a general presidential removal power, including a misquotation of Blackstone in a 2020 amicus brief in the Supreme Court case Seila Law v. CFPB. Their brief is linked here. You can find the relevant passages from Blackstone following this link.

Over the next few posts, I will detail some of those misquotations and misinterpretations in this amicus brief itself, and then in the scholarship upon which this brief relied — some of the same scholarship upon which the Supreme Court relied. I start here with one misinterpretation of Blackstone, interpreting the word “disposing” as “removing,” when context and usage indicate that it meant “distributing” and “appointing.” The next post will explain what I think 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.

These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentioned removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Let me start with some context: I wrote a letter to the seven signatories of this amicus brief on October 13, 2021, identifying these questions, suggesting they were misinterpretations and asking for clarifications. I have had good phone conversations with most of them since sending this letter, and we have had good exchanges about my draft. These posts will not come as a surprise. I have learned much from each of the co-signatories, and I am planning a conference with one of them (Michael McConnell), “The Histories of Presidential Power,” and we have invited most of these co-signatories to this conference. Michael Ramsey and Ilan Wurman are participating. I offer this post as a commitment to dialogue. As I told them in my letter, I believe these misinterpretations 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 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.

First, Blackstone:

         The section “The English Constitutional Backdrop,” (p. 6 to 11) makes three basic errors: A) It assumes that by “dispose,” Blackstone meant “remove,” rather than use powers at one’s disposal, to grant, or to appoint, given other usage of the word in Blackstone and the U.S. Constitution; B) the brief misquoted and re-wrote Blackstone’s tentative passage on “great officers” and “subordinate magistrates,” fundamentally changing the meaning from introductory set-aside language of uncertainty to a certainty claim of “not”; and C) assumes that Blackstone’s reference to “great officers” or “principal secretaries” is the equivalent of the U.S. Constitution’s “principal officers,” when they are the equivalent of the cabinet and department heads. There are additional concerns laid out in D).

Here are three passages from the brief raising my concerns, with questionable passages in bold:

“First, in 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. See, e.g., 1 William Blackstone, Commentaries on the Laws of England *243, 261–62, 327 (1st ed. 1765–69); Michael Duffy, The Younger Pitt 18–27 (2013); Murray Scott Downs, George III and the Royal Coup of 1783, 27 The Historian 56, 72– 73 (1964).”

– Amicus brief, p. 3

See below for a discussion of these three passages (pages 243, 261-62, and 327).

“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.” Blackstone, at *261. As to “officers,” Blackstone wrote, this meant that “the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them,” from which principle “arises the prerogative of erecting and disposing of offices.” Id. at *262. 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

“The power to create offices, dispose of (appoint to and remove from) those offices, and direct those officers was part of the king’s power to carry law into execution.”

– Amicus brief, p. 11:

This blog post focuses on the word  “dispose,” and the next will focus on the misquoting of Blackstone on page 8 (Blackstone said something more or less the opposite of what was claimed in the brief).

Blackstone included on his list of royal prerogatives the powers “of erecting and disposing of offices.” Blackstone at 261-62. See also Ilan Wurman, In Search of Prerogative, Duke L.J. 139-43 (citing this passage from Blackstone to support a claim of removal power).

However, context and general usage indicate that “disposing” means “at his disposal” for distributing them to his subjects. It seems the brief and “In Search of Prerogative” mistook “dispose” for a modern “disposal” system of removal or dissolution. Blackstone often used “dispose” to mean “use” or “distribute.” See, e.g., id at *218, 271, 273, 331. The rest of the passage indicates only one limit on the royal management of offices – no new fees – which seems to clarify that “dispose” meant distribute and not even to abolish the office. In the same section, Blackstone used the word “disposal” clearly in the context of distributions of honors and appointments, not removal:

“For the same reason, therefore, that honours are in the disposal of the king, offices ought to be so likewise; and, as the king may create new titles, so may he create new offices but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament.” Id. at *271.

Elsewhere, Blackstone wrote, “But his present majesty having, soon after his accession, sponteneously signified his consent that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public.” Id. at 331. See also id. at 218, 273

         Moreover, Article IV of the Constitution itself uses “dispose” as a synonym for “give,” “establish” or “make”: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” See U.S. CONST. art. IV, § 3, cl. 2 

Even if, arguendo, the meaning of “dispose” was to abolish the office entirely, this power is not the same as removing and replacing the officer. The power to grant an office in the English system did not imply a power to remove an incumbent in order to grant it to someone new, for precisely the tradition of hereditary, life-time, or term-of-years property in offices that Blackstone himself discussed (“heritable property”) and that Birk, Manners, and Menand have documented.  If one assumes the proposition that the power to appoint implies the power to remove, that “the power to remove is incidental to the power to appoint,” it is striking that Blackstone does not mention such a general “incidental power” of removal in his extended discussion on “incidental powers” at pages *239-44.

Next up: Blackstone on “Subordinate Magistrates,” (Blackstone did not, in fact, “explain[] that these offices are not ‘in any considerable degree the objects of our laws,’” because he did not put the “not” there..)

Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism

I have posted a new 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 the course of writing this paper, I have found a series of misinterpretations of historical sources by unitary executive scholars, including a misquotation of Blackstone in a 2020 amicus brief in the Supreme Court case Seila Law v. CFPB. Over the next few posts, I will detail some of those misquotations and misinterpretations. These are more than small interpretative errors. They often get the big points backwards, such as Blackstone as fundamental contrary evidence to the unitary theorists’ assumptions, or the lack of support for indefeasible removal power, or how the First Congress actually rejected the unitary theory. In our current moment when originalism claims to be the most reliable and objective method of interpretation, these errors and misinterpretations should give us pause about such certainties.

Here is the abstract of this paper below. More to come in a series of historically detailed and dense posts.

Abstract: This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so?

Unitary executive theorists’ reliance on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them.


When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

“Vesting” Uses Spreadsheet, 1776-1789

I have updated “Vesting,” posting the results of a search for “Vested” in UVA Founding Era Collection, 1776-1789, with over 1,000 uses. The spreadsheet is on SSRN here. An updated paper is here.

Special thanks to my research assistants Michael Albalah, Anne Brodsky, Xinni Cai, Chloe Rigogne, Emily Rubino, Tatum Sornborger, and Colin Shea.

Bottom line: The use of “all” in Art I & its absence in Art II both may be significant, in favor of non-delegation but against unitary executive.

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory: The president possesses executive powers exclusive from congressional limitations (i.e., they are indefeasible). Many originalists assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.
This Article offers a close textual reading of the word “vesting” and an examination of its eighteenth-century usage and context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. Its ordinary meaning was most likely a simple grant of powers without signifying the impermissibility of legislative conditions, such as a good-cause requirement for removals.
Other words used in the Constitution or by the framers to convey exclusivity or indefeasibility (e.g., “all,” “exclusive,” “sole,” “alone,” or “indefeasible”) are missing from the Executive Vesting Clause.
Modern assumptions about “vesting” for official powers are likely semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of “vested rights.” However, the era’s available dictionaries from 1640 to 1846 defined “vest” without reference to exclusive or indefeasible powers, but instead in terms of individual property rights (usually limited to landed property, not offices or powers). Other legal documents and a database of founders’ papers indicate a usage ranging from “fully vested” to “partly vested,” so that the “vesting” by itself would signify less completeness.
If the Executive Vesting Clause did not convey indefeasibility, it is unclear what remains of the unitary theory’s originalist basis. On the other hand, the “all” in the Legislative Vesting Clause may be more legally meaningful for non-delegation.

Countering Gerrymandered Courts

I have posted a new draft on SSRN: “Countering Gerrymandered Courts: A Comment on Miriam Seifter’s ‘Countermajoritarian Legislatures'” (forthcoming Columbia Law Review Online, 2022).

Miriam Seifter’s “Countermajoritarian Legislatures” (forthcoming Columbia L. Rev. 2022, link here) makes a series of important observations, with a thoughtful synthesis with practical impact on constitutional doctrine. Seifter builds on a well-known fact: Gerrymandering is especially anti-democratic in many state legislatures. She notes that major areas of federal and state constitutional law turn on a mistaken assumption that legislatures are more democratic than the courts, especially controversial in the recent litigation – and surely future contests — over presidential elections. Then she adds her key insight: State legislatures are usually more anti-democratic due to gerrymandering than their governors and judges, who are (generally) elected state-wide, and thus, courts and policy-makers should rely more on those branches to protect democratic norms and institutions.

This comment offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into anti-democratic districts. The problem is that some states do use districts for their state judicial elections, and there are growing concerns about both parties using gerrymandering for their advantage.

This comment begins with some observations about the democracy and hypocrisies in the Supreme Court’s recent reflections on state legislatures vs. courts. Then it summarizes the mid-nineteenth-century’s rise of judicial elections along with local judicial districting. Today, state court seats have become the new battleground of gerrymandering by both parties. Then this comment identifies a problem: the exception for state judicial districts not to follow the “one-person/one-vote” rule; and a countervailing trend: elected judges are similar enough to other elected officials to be subject to other election rules (e.g., the Voting Rights Act), but are different enough to have special First and Fourteenth Amendment rules to protect “the rule of law” and the “integrity” of the courts. Following those doctrinal tends, this comment suggests some possible solutions: 1) more federal judicial oversight, against the “political question” assumptions hinted by the “independent state legislature” doctrine; 2) end the Baker v. Carr exception; 3) adopt a special rule against partisan gerrymandering for judges; 4) and the most manageable solution: a bright-line against all state court districting, so that all state judicial districts must be state-wide. This last proposal replaces one prophylactic rule (one-person/one-vote) with another as the best way to counter the anti-democratic gerrymandering of state courts and to protect against asymmetric beanball against democratic norms.

Conservative Members of Congress Should Resign En Masse and Transfer to Other Legislatures

Congress is a failed institution. Speaker Nancy Pelosi should have resigned, Schumer should be on administrative leave, and Diversity Director Lynne Cheney should be unemployed. Alas, Pelosi is clinging to the remaining months of her tenure. And Josh Blackman issued a not-too-reasonable Reason blogpost on “sharing of private thoughts that haven’t been fully reasoned.” In other words, “why so serious?” (I hope the Joker …and Pink… are not triggering).

At this point, there is only one way to make Congress suffer: deny it the prestige it so desperately seeks. Specifically, Republican members of Congress should resign en masse and move abroad and run for office there, to ensure that other global legislatures can take credit for their legislative genius. As a plus, GOP representatives who transfer out of America may actually learn something about the law and humanity -a useful skill for any human.

I’ve had the honor of meeting some Republicans. They are under siege on a daily basis. They should shrug, and get out of America. I’m sure Vladimir Putin would welcome the entire Republican caucus.

Histories of Presidential Power: Conference at Stanford, May 2022


I’m thrilled to be organizing this conference with Michael McConnell and the Stanford Constitutional Law Center, May 20-21, 2022 (open to the public):

Histories of Presidential Power

It is no surprise that an unprecedented Presidency in the United States should be an occasion for new thinking about the design of Article II of the U.S. Constitution and the scope of executive power in America. But in fact, this rethinking has been happening for some time now, in the form of an emerging body of originalist historical work on core features of Article II and the President’s relation to other branches. Although originalist inquiry emerged in the twentieth century as a decidedly conservative phenomenon, and although the contemporary Supreme Court justices most associated with originalism have favored expansive presidential power, the new historical work on the presidency (from across the political spectrum) offers more evidence against the “imperial” presidency and broad executive discretion.

Some newer work on Article II – authored by the scholars proposing this symposium – addresses other core parts of Article II and finds an original design of a constrained Presidency, subordinate in many respects to the Congress. New research on English and colonial institutional design and practice offer insights into Article II. New readings of the Constitution’s Vesting Clause and of the First Congress spark a fresh debate about legislative delegations to the executive branch and the scope of presidential power. New histories of emergencies in American history help us understand the evolution of executive power, especially after the debate about Trump’s border wall spending and during pandemic measures in the Covid-19 era. New interpretations of nineteenth-century administrations help us understand the construction of presidential power – and the emergence of the separation of powers — over time. And new research into the eighteenth century has sparked new legal debates about fiduciary constitutionalism and non-delegation of legislative power. This conference brings together many authors on opposite sides of these debates to discuss, synthesize, dig deeper into the past, and move forward into the future of constitutional interpretation.

Panel 1: How the Presidency Emerged from Colonial, English, and Founding Era Law and Practice
Andrew Kent (Fordham), Michael McConnell (Stanford), Julian Mortenson (Michigan), Eric Nelson (Harvard)
Maeve Glass (Columbia), commenting

Panel 2: The First Congress and Executive Power (FRIDAY)
Aditya Bamzai (Virginia), Lindsay Chervinsky (GW, SMU, author The Cabinet: George Washington and the Creation of an American Institution), Mike Ramsey (San Diego), Jed Shugerman (Fordham), Ilan Wurman (Arizona St). Commenting/Moderating: Gerhard Casper (Stanford). Commenting: Jonathan Gienapp (Stanford)

Panel 3: What Article II History Teaches About Emergency Powers (FRIDAY)
Aziz Huq (Chicago), Cristina Rodriguez (Yale), Bernadette Meyler (Stanford), Norm Spaulding (Stanford)
Ingrid Wuerth (Vanderbilt), commenting. Anne Joseph O’Connell (Stanford), moderating.

Panel 4: Early Presidential Construction of Constitutional Power
Niko Bowie & Daphna Renan (Harvard), Alison LaCroix (Chicago), Nicholas Parrillo (Yale). Commenting: Jack Rakove (Stanford)

Panel 5: Public Fiduciaries and the History of Article II
Ethan Leib & Jed Shugerman (Fordham) and Seth Davis (Berkeley). Commenting/moderating: Diego Zambrano (Stanford), Elizabeth Reese (Stanford)

Panel 6: (Non-)Delegation
Will Baude (Chicago), Philip Hamburger (Columbia), Jenn Mascott (GMU/Scalia), Julian Mortenson (Michigan), Nick Parrillo (Yale). Commenting: Gillian Metzger (Columbia)

To ensure the safety and public health of our Stanford University community, approved visitors must attest that they have screened themselves prior to arriving on Stanford campuses, do not have COVID-like symptoms, and that they are not in a restricted status requiring isolation or quarantine.

All visitors coming to a Stanford campus must attest that they meet at least one of two criteria:

1) be fully vaccinated against COVID-19

2) receive a negative COVID-19 test within 72 hours prior to arrival onsite

To attest, visitors must complete the Stanford Visitor: Daily COVID-19 Health Attestation, on the day of the event. Both the visitor and the Stanford contact will receive copies of the completed attestation form. Any visitor unable to attest, is NOT approved for onsite access.