The Indecisions of 1789: Inconstant Originalism

61 Pages Posted: 22 Jun 2020 Last revised: 1 Mar 2022

Date Written: May 8, 2020

Abstract

The unitary executive theory relies on “the Decision of 1789” in the first Congress to establish an originalist basis for a presidential removal power at will and unchecked executive power. However, these interpretations from Myers (1926) to Seila Law (2020) and Collins (2021) are incorrect.
The unitary theory’s strict separation-of-powers argument depends on presidential exclusivity and indefeasibility (i.e., Congress may not set limits or conditions). This Article offers a modest version of the argument: concrete evidence of indecision on even the weak version of their theory; a stronger version: the first Congress decisively rejected the unitary model; and a broader argument: The widespread errors by the Supreme Court and originalist scholars raise doubts about the practice and the reliability of originalism generally.
This new interpretation turns on two new approaches to the First Congress’s debates, a key overlooked source (a Senator’s diary), and a new look at the old sources. The most significant overlooked evidence is Senator William Maclay’s diary and other senators’ notes, which confirmed that the Senate had been opposed to Madison’s overall legislative agenda and to presidential removal and then documented a confusing and obfuscating debate.
The first new interpretive approach is to focus on the only day of debate (Monday, June 22d) that separated the unitary “presidentialists” (who thought Article II established presidential removal) from the “congressionalists” (who thought Article I gave Congress the power to delegate removal). These speeches clarify the members’ positions and the size of each faction, revealing that only one third of the House supported unitary presidentialism, and a broad majority rejected it.
A second new approach puts this debate in the context of the urgent and sprawling legislative agenda in the summer of ’89. The next step is to understand why they retreated to strategic ambiguity: Madison and other presidentialists knew they did not have the votes (either in the House for their theory or in the Senate for presidential removal under either theory). A study of the first Congress’s drafting practices reveals that explicit explanatory clauses and preambles were common, but Madison went in the opposite direction, replacing the clear clause with a new unclear clause. Retreat to “strategic ambiguity” is the best explanation for these maneuvers, and House members suggested as much on the House floor. Opponents immediately mocked Madison’s retreat, and one of Madison’s allies even conceded on the House floor that this shift “would be more likely to obtain the acquiescence of the senate on a point of legislative construction” (i.e., more interpretative and indecisive flexibility).
A week after the ostensible “Decision,” Madison proposed a “good behaviour” Comptroller, and the ensuing debate confirmed a rejection of the “indefeasibility” theory of presidential power. Other statutes and debates in 1789 also show little support for tenure “at the pleasure” of the president.
Perhaps most importantly, this closer look at the evidence shows reveals widespread confusion not only in the First Congress, but also among modern scholars. Their repeated misuse of Founding Era sources raises broader doubts about the practice of originalism and its reliability.


Keywords: Administrative Law, Constitutional Law, Legal History, Unitary Executive, Founding Era, Removal Power

Suggested Citation

Shugerman, Jed Handelsman, The Indecisions of 1789: Inconstant Originalism (May 8, 2020). Fordham Law Legal Studies Research Paper No. 3596566, University of Pennsylvania Law Review, Vol. 171, 2022, Available at SSRN: https://ssrn.com/abstract=3596566 or http://dx.doi.org/10.2139/ssrn.3596566

Jed Handelsman Shugerman (Contact Author)

Fordham Law School ( email )

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6462933955 (Fax)

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