As noted in my opening post in this series, earlier this month Professor Jed Shugerman sharply criticized originalist executive power scholars, and particularly a brief submitted to the Supreme Court by originalist scholars in Seila Law v. CFPB. One key point of dispute was the extent to which Blackstone’s Commentaries indicates that the eighteenth-century English monarch had removal power over executive officers.
In my first post, I discussed Blackstone’s account of the monarch’s executive power. This post addresses a key area in which, in Blackstone’s description, the king’s removal power was limited: the tenure of judges. Blackstone’s discussion there is in sharp contrast to his discussion of the king’s unitary power over law execution.
Blackstone begins (p. 257-258):
It is probable, and almost certain, that in very early times, before our constitution arrived at it’s full perfection, our kings in person often heard and determined causes between party and party. But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depository of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament. And in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 W. III. c.2 [the 1701 Act of Settlement] that their commissions shall be made (not, as formerly, durante bene placito [during pleasure], but) quamdiu bene se gesserint [during good behavior], and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament.
He goes on to emphasize the importance of this change in judicial tenure in strong terms:
In this distinct and separate existence of the judicial power, in a particular body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. (p. 259.)
The significance of these passages for executive removal power is twofold. First, Blackstone focuses directly on limited removal power as the mechanism for separating judicial power from executive power. The Act of Settlement’s substitution of good behavior tenure (quamdiu bene se gesserint) for tenure at the king’s pleasure (durante bene placito) assures “the dignity and independence of the judges.” Or as stated in the second quoted passage above, the “distinct and separate existence of the judicial power” arises from the judges being “nominated indeed, but not removable at pleasure, by the crown.” The king’s executive power formerly included judicial power but because of the Act’s changes in the removal power it no longer did.
Second, Blackstone’s discussion of judicial tenure strongly implies that executive officers, in contrast to judges, did not have protection against removal by the monarch. Most simply, the reason judges had removal protection was because the Act of Settlement provided it, and the Act did not protect executive officers. Moreover, in focusing particularly on judges as having a noteworthy protection from executive interference, Blackstone’s description carries the negative implication that executive officers lack that protection.
More fundamentally, read together with Blackstone’s description of unified executive power (which it would be, as they are in the same part of the Commentaries), Blackstone’s account of judicial tenure shows that the English constitutional structure would not accommodate similar tenure protections for executive officers. As shown in my prior post, Blackstone emphasized the unity of the executive power in the king. But for Blackstone, the king’s lack of at-pleasure removal power over judges established judicial independence (even though judicial offices were filled by the monarch). Protections against removal were incompatible with a unified power: they created separation and independence. Thus the monarch could not have had unified executive power (as Blackstone said he did) without a general power of removal of subordinate executive officers.
In sum (as to my posts so far), Blackstone said (a) the king had unified executive power, and (b) the king lacked judicial power because although he appointed judges he lacked removal power over them (as a result of the Act of Settlement). I think it clear that an ordinary reader would conclude from this account that the king’s executive power implied removal power over executive officers.
In my next post on the subject, I’ll turn to what Blackstone said specifically about removing subordinate executive officers.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.