Notice & Comment

A Reply to the Unitary Executive Theorists on the Misuse of Historical Materials, by Jed Shugerman

I appreciate that the editors of Notice & Comment have given me the opportunity to reply to Ilan Wurman’s post and Mike Ramsey’s five-post series addressing my concerns about their Seila Law amicus brief with Steven Calabresi, Michael McConnell, Sai Prakash, Jeremy Rabkin, and Michael Rappaport, and about the errors in their scholarship cited in the brief. My papers raising these questions are primarily Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism, Yale J. of Law & the Humanities (forthcoming 2022), and my paper The Indecisions of 1789 (see especially Appendix), as well as Vesting, Stan. L. Rev. (forthcoming 2022). I note that I had raised these concerns in polite private correspondence over the past two years, hoping for openness to dialogue.

As I said in my first post on Jan. 7, I want to reiterate my appreciation that Wurman and Ramsey have stepped forward to defend their use of Blackstone and that they have conceded one of these errors: their misinterpretation of the royal prerogative of “disposing” offices as removing from office. However, they claim that changing the wording and plain meaning of a Blackstone quotation (changing “I do not know” X into “not X”) was simply a “clarifying” of its overall meaning, and they dismiss these errors as irrelevant.

I think it is important to acknowledge how this misquote itself is a microcosm of a pervasive problem in originalism: because of a series of assumptions, originalists often jump to conclusions of certainty from more uncertain and contested meanings. Here, Blackstone was explicitly saying “I do not know” whether something was true about the law of offices, and the unitary theorists changed the words to jump from Blackstone’s explicit uncertainty to a statement of certainty in their brief and two articles. That should be a serious red flag about originalist methods, and it should have been a moment for the authors to pause and reconsider their strongly worded conclusions in their brief: claims of “overwhelming weight of the evidence” (p. 7), that their conclusions were “unquestionabl[e],” that our alternative interpretation was “simply a disagreement with the Constitution.” (p. 17).

Nevertheless, Wurman 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.”

In the drafts I sent them (linked above) and in my private correspondence, I offered many different kinds of evidence clearly to the contrary, several passages directly from Blackstone:

  1. A discussion of offices as property with three non-removable categories and just one removable category: “estate… either to him and his heirs, or for life, or for a term of years, or during pleasure only,” (2 Blackstone at *36);
  2. Blackstone’s chapter 9 specificies about removability and non-removability of a small number of offices, indicating no default rule; and
  3. The end of the chapter 8 on more recent changes towards removability in treasury and the military, with Blackstone indicating his ambivalence or disapproval of these changes, and reflecting that there had been no traditional removal rule and still no general rule in the eighteenth century.

I also offered more contemporary 18th century sources (Edmund Burke and 18th c. dictionaries) and a series of modern historical sources confirming no general rule of royal removal and a long tradition of non-removable offices. You can find a short summary here (and the most relevant paper “Removal of Context” on SSRN).

To be clear, the misquoting of Blackstone may be their most obvious error, but these are not the most serious, pervasive, and fundamental historical errors. The “Decision of 1789” plays a more central role in the unitary executive precedents (Myers, Seila, etc.), and Sai Prakash’s misinterpretations of First Congress sources were more widespread (Appendix here). Former federal judge Michael McConnell’s book has gaps, unsupported claims, and fundamental errors undermining its thesis (described here in “Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus”). After many months of sharing my concerns privately, only Wurman and Ramsey have replied publicly, and only on the narrower question of Blackstone on the removal power.

The bottom line is that their explanations and their evidence do not stand up to scrutiny. Here are their three main explanations/excuses:

(1) They blame the misquotation on the word limits of a Supreme Court brief: “[B]ear in mind that the length of amicus briefs is limited.” “A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable.” “[I]t was necessarily described in somewhat abbreviated form due to space limitations.”

These excuses for changing the plain meaning of a quotation is not acceptable in any format, especially a Supreme Court brief. Nor is this excuse accurate, because the same misquote appeared three times in law review articles (here and here).

(2) Ramsey: “Blackstone was only a small part of the brief.”

Not true. Not only was Blackstone the main source covered over six pages, as one of their two historical arguments (the other was the First Congress), but the concept of “Blackstone’s list of prerogatives” was the core of McConnell’s thesis. McConnell makes it clear that simplistically relying on English kings’ powers is royalism or “Schmittian… unchecked powers” (distinguishing his approach from Carl Schmitt, Eric Posner, and Adrian Vermeule), while the Founders’ spreading out the royal prerogative is what makes them republican. Unfortunately, both McConnell’s book and their brief do not actually rely on Blackstone’s list, and it is deeply significant error to claim that Blackstone listed removal as a prerogative power. They thus engaged in the royalist cherry-picking and the Schmittian extra-legalism (powers “not limited by law, but only by politics and custom”), which McConnell had sharply rejected in setting forth his thesis and method. See The President Who Would Not Be King, p. 11, 28-29, 359 n. 36. See my blogpost Originalism and the Seila Law Brief, Part II: Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus.

(3) They claim that their misquote nevertheless more accurately reflected both Blackstone’s general view and the passage’s meaning (e.g., Ramsey writes: “Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant.”)

If one misquotes a major source in a brief – and then offers a defense that one got the gist right anyway – one ought to have overwhelming evidence for that “gist.” (And even then, it’s still problematic to change any quotation’s plain meaning). Unfortunately, they have not offered any evidence that Blackstone recognized a general, traditional royal power of removal. Their new Blackstone citations backfire.

I am not simply suggesting that their historical evidence (for the claim that Blackstone’s Commentaries are evidence that the king had a general power or prerogative to remove “executive” officers as part of “executive power) is weaker than the evidence I and others have offered.

To be clear: I find that none of their evidence actually supports their brief’s general claim. They merely identify some distinguishable or isolated examples (e.g., George III removing his cabinet after the American Revolution somehow as a model and not an anti-model for the Founders in both the brief and McConnell’s book; or Blackstone’s examples of justices of the peace and sheriffs, despite counter-examples), and they wrongly infer a broader removal power. They repeatedly conflate the small number of English cabinet officers (“principal secretaries”) with the less defined category of American “principal officers.” They have offered other passages that they acknowledge do not mention removal, but they wrongly suggest that they imply removal. Instead, their replies and excuses make a new round of errors that deepen my concerns about their misunderstandings and misuses of the core 18th century historical documents:

1. “Due Subordination” as Symbolic, and Not a Removal Power

Blackstone’s reference to “subordination” to the king was more about the symbolism in a limited monarchy, and Wurman and Blackstone again misunderstand Blackstone’s fundamental structure of limited monarchy, parliamentary supremacy, and the English rule of law, not of the Crown. I was especially surprised, after pointing out that Wurman and the brief problematically deleted or added words to quotations to change their meanings, that Wurman yet again changed a quote by adding the word “magistrates” in a misleading way: “Blackstone wrote about the importance of unity in the executive and hence ‘all other[ magistrates] act[] by commission from, and in due subordination to’ the monarch.” Wurman then wrongly inferred a removal power from “subordination.” Adding the word “magistrate” would mislead someone to infer Blackstone was referring to an specifically executive office, when Blackstone’s passage would include judges and other officers who could not be removed. See my full post Confusion About Symbolic Subordination, Executive Power and Offices.

Both Wurman in his Notice and Comment post and Ramsey in his first and most significant post point to Blackstone saying that officers owe the king “due subordination,” and they posit that even if Blackstone never mentions removal power, “subordination” implies removal. Unfortunately, their passages show that the king’s authority did not imply removal. Blackstone referred to the king’s authority over “offices” and over “all others acting by commission.” Judges and many other officers held “offices” and “act by commission,” and yet were not removable (and this is according to Blackstone, their own briefs, and McConnell’s book). The brief assumes that Blackstone had a sharp distinction between executive and judicial power, but it also includes quotes from Blackstone contradicting this assumption (Amicus brief at p. 9). See the full passage of Blackstone referring to judges as “executive” here.

2. Judges’ “Good Behaviour” Tenure Does Not Imply Lack of Protection for Other Offices:

Ramsey’s second post and Wurman here claim that judicial tenure during good behavior (Blackstone p. 257-59) somehow implies the opposite for “executive officers.” Ramsey claims that “Blackstone’s discussion of judicial tenure strongly implies that executive officers, in contrast to judges, did not have protection against removal by the monarch.” No, it does not. All it means is that a new general rule emerged for judges as a category, but there was no general rule for other officers. They acknowledge elsewhere that other officers were protected from removal. Blackstone (and McConnell’s book) both explained that offices could be unremovable property (an “estate… either to him and his heirs, or for life, or for a term of years, or during pleasure only.” 2 Blackstone at *36). I have pointed out that 18th century dictionaries and other sources confirm that these protected offices were widespread, and some of these passages indicate life tenure offices at high level national positions. See also Aylmer here and my full post here. In fact, their next argument contradicts the above claim:

3. Two Examples of “Subordinate Officers” Don’t Show a General Rule:

Ramsey’s post #3 is titled “Blackstone on Subordinate Magistrates,” but there isn’t much new here, just repeating earlier inferential leaps. And I already addressed his point here. Ramsey notes that some subordinate officers were removable at pleasure, but others were protected from removal. It is still not clear why they think this evidence supports their claim. Instead, Blackstone had to specify removal rules case-by-case because there was no general rule. On a very limited list of four law officers, Blackstone describes a mix of tenure at pleasure and more protected tenure.

Ramsey’s summary of chapters 7 and 9 conveniently skipped chapter 8, which I have highlighted as evidence against removal as a traditional power here. See Chapter 8 (1 Blackstone 334-36), distinguishing the recent shift to “at pleasure” Treasury offices from traditional prerogative powers, with misgivings or doubts about these novel reforms (regretting that they are due to “unaccountable want of foresight, established this system in [the] stead” of traditional powers.”)

Ramsey’s final post (#4) returns to chapter 9 to discuss how Blackstone specified removal for four local officers: two removable at pleasure by the king (justices of the peace and sheriffs), one removable only for good cause (coroners), and one with removal only by local bodies (constables). It also does not add anything new to support their claims.

4. Their Retreat from “Overwhelming Evidence” to Mere “Plausibility”: From Their Originalism to Royalism

In some replies, Wurman makes some surprising clarifications. He has retreated to claiming that his reading is simply “plausible,” which is a far cry from the brief’s overclaiming of “the overwhelming weight of the evidence” (p. 7) and “unquestionably” that the king could remove “principal executive officers” (even though that category did not exist in Blackstone). I did not think originalists believed that merely “plausible” readings were acceptable in constitutional interpretation. They still have not acknowledged the inappropriate chutzpah of writing in an amicus brief that our historical argument in “Faithful Execution and Article II” was “simply a disagreement with the Constitution.” (p. 17).

Wurman also claims that I “fundamentally misunderstand [their] argument. Of course we know about the Act of Settlement. Parliament is supreme and can restrict *any* royal power. But it had to enact removal restrictions *because* otherwise the king had a removal power.”

It is still unclear why the English monarch is the right baseline for the American republican chief executive, but even assuming it is, arguendo, this is yet another unsourced claim. English removal powers and their limitations were worked out between king and Parliament over centuries, going in different directions over time. Blackstone suggested no default rule, and the best reading of Blackstone and other sources like Aylmer is that royal removal powers were contested and limited over time. Many offices were removable, many were not, but Blackstone had no general category of “principal executive officer,” and even if one could project such a category back onto Blackstone, he did not discuss “removal” as a royal prerogative or a general rule for “executive officers.”

This is where these scholars have retreated to royalism, rather than republicanism, even though McConnell fundamentally rejected this approach (the problem of relying on whatever a king could do, rather than the Founders’ unbundling of the list of prerogatives). In fact, that’s the point of his own title, “A President Who Would Not Be King,” and the point of his introduction, method, and thesis. McConnell himself tells us that pointing to English royal practices as the basis for presidential power is royalism and Schmittian, and not faithful to the Founding. I can’t help but conclude that, in the end, both the brief and the book are royalism, not originalism.

The Seila Law brief, Prakash’s article on the Decision of 1789, and McConnell’s book each misuse many historical sources, and many of their core historical claims are not backed by evidence. I ask readers to take a look for yourselves. The unitary executive theory is premised on the concept of presidential accountability. What about accountability to historical accuracy? Accountability to the courts for misquoting sources in briefs and misusing sources in books and articles cited by the Supreme Court? Originalism claims its legitimacy from a historical record and historical interpretation being clear, reliable, and open to new evidence. If the amicus brief’s historical arguments do not stand up to scrutiny, and if the Supreme Court has been citing this flawed historical scholarship, what would be the appropriate next step for originalist amicus authors?

Jed Shugerman is a Professor of Law at Fordham University School of Law.