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

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

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.