Un-fathering Executive Removal

72 Pages Posted: 11 Oct 2023 Last revised: 2 Apr 2024

See all articles by Lorianne Updike Toler

Lorianne Updike Toler

NIU College of Law; Information Society Project, Yale Law School

Date Written: March 22, 2024

Abstract

Executive removal turns on Madison’s vision of the Constitution. This because Madison is universally acclaimed by the Supreme Court as the Constitution’s father. However, Madison’s constitutional parentage sounds more in lore than logic.

A careful review of recent historiography, Madison’s own writings, and new analytics tools available on the Quill Project reveal Madison as much less important to the Constitution than previously thought. He did not bring about the Convention, did not write the Virginia Plan, and was not that influential at the Constitutional Convention. Immediately after the Convention, Madison considered himself and the Constitution a failure, and disclaimed any singularly unique role in its framing. His influence grew post-Convention in writing the Federalist Papers and drafting the Bill of Rights but was more modest for the unamended Constitution. Madison does not a father make, especially in the singular sense.

This paper focuses on the impact Madison’s demotion has on the Supreme Court’s interpretation of the Constitution, especially in executive removal jurisprudence where Madison looms large. Without Madison on the constitutional podium, the bottom drops out of executive removal. It must be reconstructed on additional or alternative grounds.

Keywords: James Madison, Constitution, constitutional history, legal history, Constitutional Convention, executive power, executive removal, Decision of 1789

Suggested Citation

Updike Toler, Lorianne, Un-fathering Executive Removal (March 22, 2024). Connecticut Law Review, Vol. 57, No. 2, 2025, Northern Illinois University College of Law Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4574078 or http://dx.doi.org/10.2139/ssrn.4574078

Lorianne Updike Toler (Contact Author)

NIU College of Law ( email )

Swen Parsons Hall 270
DeKalb, IL 60115
United States

Information Society Project, Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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