A new thread on originalism myths:
“The Indecisions of 1789: An Originalism Cautionary Tale” documents another series of misuses of sources by originalist unitary executive theorists.
The Roberts Court relied on this myth to expand presidential power: shugerblogcom.wordpress.com/2021/12/08/the…
2/ The mythic "Decisions of 1789" is that a House majority endorsed the unitary theory of implied presidential powers.
But only 16 of 53 (30%) fit that bill.
Trying to find more votes, Prakash miscategorized many members or sources.
My paper here: papers.ssrn.com/sol3/papers.cf…
3/ The 1st error: Thomas Hartley.
Prakash in "A New Light on the Decision of 1789," cited by Justice Thomas, claims Hartley was part of an "enigmatic" bloc of members that *could* have favored the unitary theory.
But he clearly was not a presidentialist: shugerblogcom.wordpress.com/2021/12/08/the…
4/ Here is what Prakash claims about Hartley (TOP).
Compare that to the original Hartley letters that Prakash cited (bottom L to Coxe; bottom R to Yeates).
Prakash seems to assume that only presidentialism could be a "principle."
Why can't the other side have principles?
5/ Hartley was in fact a leading congressionalist rallying votes against the presidentialist theory:
In the pivotal debate June 22d, Hartley advised that persons "not fully convinced that the power of removal [was] vested by the constitution in the president” should vote “no."
6/ Prakash’s assumption is the unitary interpretation has a monopoly on principle.
Congressionalists and non-unitary interpretations also have principles. This is a telling error to assume the unitary theory is driven by “principle” but other views are not.
This is ideological.
7/ Hartley’s speech is here, clearly indicating his opposition to the interpretation that the constitution “vest[ed]” removal power in the president. He is asking *others* who are “not fully convinced” to join his “no” vote.
Then he explicitly invoked “legislative authority.”
8/ This is Prakash, "New Light," p. 1054.
The gymnastics of trying to turn a leading critic of Prakash's pet theory on the key day into a supporter by utterly misreading his later letters.
Note the number of errors and misleading statements on one page:
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If your first shot was Johnson & Johnson, your booster shot is Grant & Nixon…
My apologies to @EricColumbus for missing that he tweeted this first.
But let me make up for it:
If your first shot was Janssen, your booster is Jansssen...
Likely the most significant oral argument in years (Dobbs) is happening right now, and Mississippi's lawyer is already making patently ridiculous arguments:
Right now in Dobbs at 11:22:
You can't read too much in these tea leaves... but it sure sounds like Justice Kavanaugh is practicing, reciting many examples of overturning precedents, and sounding out an opinion (and a 5th vote) to overturn Roe and Casey.
I heard CJ Roberts's questions around 11:05 this morning the same way:
Practcing or signaling a willingness to overturn precedents (i.e., Roe).
With caveat that Justices are often trying out arguments, the tone from Roberts and Kavanaugh seemed a hint against Roe/stare decisis.
A new paper: “Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism,” Yale J. Law & Humanities, 2022.
I found many errors in unitary executive amicus & scholarship on Blackstone & other historical sources. Thread: papers.ssrn.com/sol3/papers.cf…
2/ I think these errors are in good-faith. This material is complicated, the 18th c. terms are obscure.
But that's the point:
Originalists claim supremacy as the most reliable & objective method, on the eve of overturning Roe/Casey. These errors should give us all pause...
3/ Most of these errors are more than small interpretative errors in a SCOTUS amicus brief.
They often get the big points backwards, such as Blackstone's work as fundamentally contrary evidence against their theory and historical claims. shugerblogcom.wordpress.com/2021/11/30/rem…
"Vesting" updated on @SSRN:
"Vested" in UVA Founding Era Collection, 1776-1789:
My database of over 1000 uses.
Bottom line: The use of "all" in Art I & its absence in Art II both may be significant, in favor of non-delegation but against unitary executive. papers.ssrn.com/sol3/papers.cf…
Thanksgiving is a good time to thank my excellent research assistants Michael Albalah, Anne Brodsky, Xinni Cai, Chloe Rigogne, Emily Rubino, Colin Shea, and Tatum Sornborger.
Thank you!
New short paper:
Countering Gerrymandered Courts: Comment on Miriam Seifter’s "Countermajoritarian Legislatures"
(forthcoming Columbia L.Rev.Online) @MiriamSeifter's article is increasingly crucial on election law & extreme gerrymandering. papers.ssrn.com/sol3/papers.cf…
@MiriamSeifter rightly calls out mistaken assumptions that state legislatures are the democratic branch vs. governors and courts, in an era of extreme gerrymandering vs. state-wide elections.
But the past & future of state judicial elections are also districting & gerrymandering.
3/ As my book The People's Courts showed, state judicial elections emerged in the mid-19th c. with local districts, including state supreme court districts often designed to benefit rural areas or benefit one party.
Many state courts today have the same problem & could get worse.
I'm looking forward to discussing David Driesen's outstanding new book w/ @jennmascott & @narosenblum tomorrow! @dmdriesen's subtitle: "Judicial Enabling of Presidential Power."
My comment: "The Bipartisan Enabling and En-Fabling of Presidential Power"