This is my third post in a series responding to Professor Jed Shugerman’s criticisms of originalist scholarship on Blackstone and executive removal power. The first two posts described Blackstone’s general account of the king’s executive power (part 1) and Blackstone’s account of the tenure protections for judges under the Act of Settlement (part 2). This post turns to Blackstone’s chapter titled “Of Subordinate Magistrates” (Vol. 1, Chapter 9 of the Commentaries).
As discussed in my opening post, Professor Shugerman is sharply critical of the originalists’ contention that Blackstone described a system in which the king had broad removal power over subordinate executive officers. In response, I’ve argued so far that Blackstone’s general discussion of executive power in vol. 1, ch. 7 of the Commentaries strongly implies a broad removal power – both because it affirms the king’s supreme and unified executive power and because it identifies judges, but not subordinate executive officers, as enjoying protection against removal by the king.
Blackstone begins Chapter 9 by saying that he will “proceed to enquire into the rights and duties of the principal subordinate magistrates.” Then there is this sharply disputed passage:
And herein we are not to investigate the powers and duties of his majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except the secretaries of state are allowed the power of commitment, in order to bring offenders to trial. (vol. 1, p. 327, emphasis added.)
For the balance of chapter 9, Blackstone specifically discusses six categories of officers: sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor, including “the manner in which they are appointed and may be removed.”
In the originalist scholars’ brief in Seila Law v. CFPB and in other related originalist scholarship, this passage is read to mean that principal executive officers had no legal protection against removal from office because they are not in that capacity “the objects of our laws” and thus are wholly subject to the king’s supreme executive power. Professor Shugerman objects strongly that Blackstone said no such thing; Blackstone only said he did not know whether the subordinate officers had such protection.
Professor Ilan Wurman (the principal author of the Seila Law brief) responds:
Jed argues that this [quotation] is not evidence of a removal power, but rather Blackstone is expressing uncertainty given his use of the phrase “I do not know.” Perhaps that’s right, but I read the passage differently. Blackstone seems to be saying, “I can’t say for sure in every case, but I do not understand them to be subject to these laws.” That would be consistent with earlier passages in which Blackstone wrote about the importance of unity in the executive and hence “all other[ magistrates] act[] by commission from, and in due subordination to” the monarch; it would also be consistent with Blackstone’s need to specify the exception for judges, who are “nominated indeed, but not removeable at pleasure, by the crown.” Still, I grant that it’s possible to interpret the passage differently.
I agree with Professor Wurman, and I’ll add several points in support. First, it’s a common expression to say something like “I don’t know that that’s right” to mean in effect “I’m confident that that’s not right, at least as a general matter.” Second, Blackstone was the foremost authority on English law at the time; he was a chaired professor at Oxford who had systematically described the English constitutional system in a series of lectures that became the basis of the Commentaries, and he was, when he wrote this passage, engaged in preparing a comprehensive four volume treatise on English law. If he did not know of any legal protections for the tenure of principal executive officers, I think it fair to conclude that there weren’t any of significance.
Third, as Professor Wurman says, the preceding discussion in Chapter 7 of the Commentaries is entirely consistent with there being no legal barriers to the king’s removal of principal executive officers, and completely inconsistent with there being such barriers. In particular, if the king’s ability to remove principal executive officers was materially constrained, that would bring into question Blackstone’s unqualified description of supreme and unified executive power. Blackstone’s failure to say more on the matter in Chapter 9 further confirms that Blackstone, far from being in doubt, was confident that there were not material restrictions on the crown’s power over principal executive officers.
Finally, in the rest of Chapter 9, Blackstone undertakes a detailed description of the laws relating to local executive officers such as sheriffs and justices of the peace. If there had been a similar set of laws governing principal executive officers, it would have been very strange for Blackstone to spend so much time on local offices and ignore the major offices. And if he really did not know what the laws governing major offices were, it would be very strange – for someone writing a supposedly comprehensive treatise of English law – not to investigate. All this confirms that what Blackstone meant in the disputed passage, and what a reader would likely understand him to have meant, is that principal executive officers “are not in that capacity in any considerable degree the objects of our laws.”
That said, I agree with Professor Shugerman’s criticism to this extent. In the Seila Law brief (which I signed and assisted in drafting), this key quote from Blackstone is shortened and clarified with brackets, rather than being quoted in full with a supporting explanation. On further reflection I think that was not the right way to do it; a quotation of this importance should be set out in full rather than being edited, so that the reader can draw independent conclusions. In my scholarship (including blog posts!) I try to include long block quotes from key sources for exactly this reason (often over editors’ forceful objections). A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable. But here it should have been resisted. (Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant).
In my next post, I’ll briefly address what Blackstone said about local executive officers and add some thoughts and caveats in conclusion.
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.
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