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:
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
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
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."