{"id":5059,"date":"2021-12-16T14:46:03","date_gmt":"2021-12-16T19:46:03","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=5059"},"modified":"2021-12-16T14:46:03","modified_gmt":"2021-12-16T19:46:03","slug":"shugerman-on-removal-of-context-blackstone-limited-monarchy-and-the-limits-of-unitary-originalism-jedshug","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2021\/12\/16\/shugerman-on-removal-of-context-blackstone-limited-monarchy-and-the-limits-of-unitary-originalism-jedshug\/","title":{"rendered":"Shugerman on Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism @jedshug"},"content":{"rendered":"

Jed Handelsman Shugerman, Fordham Law School, is publishing Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism<\/a> in volume 22 of the Yale Journal of Law and the Humanities (2022). Here is the abstract.<\/p>\n

This article is part of a series on Article II, questioning the unitary theory\u2019s three pillars: the Executive Vesting Clause, the Take Care Clause (or the \u201cFaithful Execution\u201d clauses), and the Decision of 1789 (or more accurately, the te: Did \u201cexecutive power\u201d imply supervision and removal in the eighteenth century? What do the .he problems of relying on England\u2019s limited monarchy, the era\u2019s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a \u201croyal prerogative\u201d at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed \u201cexecutive powers\u201d (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II \u201cexecutive power\u201d implies them.<\/p>\n

When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone\u2019s use of the word \u201cdisposing\u201d of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against \u201cindefeasible\u201d executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists\u2019 assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.<\/p><\/blockquote>\n

Download the article from SSRN at the link.<\/p>\n\n

Tweet<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

Jed Handelsman Shugerman, Fordham Law School, is publishing Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism in volume 22 of the Yale Journal of Law and the Humanities (2022). Here...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[492],"tags":[132,200],"class_list":["post-5059","post","type-post","status-publish","format-standard","hentry","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/pasVL2-1jB","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/5059","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=5059"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/5059\/revisions"}],"predecessor-version":[{"id":5060,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/5059\/revisions\/5060"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=5059"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=5059"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=5059"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}