Jed H. Shugerman, Boston University School of Law, has posted The Misuse of Ratification-Era Documents by Unitary Executive Theorists, which is forthcoming in the Michigan Journal of Law Reform:
The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis, a methodological crisis, and perhaps an academic crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.
The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the president had a general power of removal -- even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed.
Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory, claim to have identified four passages from the Ratification debates. Unfortunately, none of these four passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. They have not only misinterpreted historical records from the 1780s and 1790s, but also how they have repeatedly misinterpreted other scholars’ work in 2020s.
Taking these examples together with the many errors and misinterpretations identified by historians and legal scholars over the past few years, there are at least three big-picture questions:
1. If these sources were the only examples that the unitary executive theorists have identified from the Ratification debates, is it reasonable to conclude that the Ratification debates offered no support for the unitary executive theory of presidential removal, while the Federalist Papers plus Anti-Federalist silence are overwhelming evidence against it?
2. If so, is the originalist case for the unitary executive theory dead?
3. If “originalism” is a serious academic enterprise, are there consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?
--Dan Ernst
