The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity

73 Pages Posted: 22 Jun 2020 Last revised: 22 Nov 2022

Date Written: May 8, 2020

Abstract

The unitary executive theory relies on “the Decision of 1789” as an originalist basis for an unconditional presidential removal power. However, these historical interpretations from Myers (1926) to Seila Law (2020) and Collins (2021) are incorrect.

Seila Law’s strict separation-of-powers argument depends on presidential exclusivity and indefeasibility (i.e., Congress may not set limits or conditions). Only eight of 53 participating memers of the House explicitly endorsed even the weaker version of the interpretation of Article II: a presidential removal power without resolving whether Congress could set conditions. Many more spoke against it, and the 16 or so House votes that have been assumed to be “presidentialist” are not only just a third of the House, but they are just as explainable as “strategic ambiguity.”

This Article offers a modest version of the argument: the historical evidence shows indecision on even the weak version of the removal theory; it also offers a stronger version: the first Congress decisively rejected the unitary model; and a broader argument: the widespread errors by Supreme Court Justices and originalist scholars raise doubts about the practice of originalism.

This new interpretation turns on overlooked sources (a Senator’s diary and other senators’ notes) and two new approaches to the First Congress’s debates. Senator William Maclay’s diary confirmed that the Senate had resisted Madison’s overall legislative agenda and opposed presidential removal. Maclay and other senators 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).

A second new approach puts this debate in the context of the urgent and sprawling legislative agenda in the summer of ’89. Madison and other presidentialists knew they might not have the votes either in the House (for their presidential theory) or in the Senate (for presidential removal under any 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 removal clause with a new unclear clause. Retreat to “strategic ambiguity” is the best explanation for these maneuvers, and House opponents mocked the retreat, and House supporters even conceded this change “would be more likely to obtain the acquiescence of the senate on a point of legislative construction” (i.e., more flexibility).

Contrary to the unitary theorists’ claim that the question of indefeasibility was “never really contested” or “squarely addressed,” the First Congress in fact contested and rejected an indefeasible removal power. Perhaps most importantly, this closer look at errors, even though made in good faith, raise broader doubts about the reliability of originalism. 

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

Suggested Citation

Shugerman, Jed Handelsman, The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity (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 )

140 West 62nd Street
New York, NY 10023
United States
6462933955 (Phone)
6462933955 (Fax)

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