Hint: The unitary exec theorists misquoted Blackstone to claim one of these.
Somehow, I keep finding evidence to the contrary.
Please tell Roberts, Kavanaugh, and Thomas that originalists are just making stuff up, so maybe they should be less sanctimonious against Roe & privacy.
Well… The wrong answer (removal) was in the lead until I tagged the legal experts who know better (certainly better than the unitary executive mythologists).
Anyway, more originalists’ mistakes and misquotes are detailed here:
If Trump wins a second term, I hope people understand how Cy Vance, Eric Schneiderman, Tish James and the corrupt Cuomo NY Democratic Machine enabled him all along the way.
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…
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!