Check it Out: Shugerman on "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism

Jud Shugerman just posted "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism. Here's the abstract:

SEC v. Jarkesy represents a turning point – and arguably a legitimacy crisis -- for both the unitary executive theory of removal and originalism-in-practice. Over the last five years, a wave of scholarship by legal scholars and historians has disputed, and sometimes refuted, the historical claims by unitary theorists that Article II implies a presidential power to remove executive officers. In response to those arguments, I observe, first, that the legal academy’s prominent unitary executive theorists have fractured into contradictory positions, even internally contradictory positions. (There is a deep irony of “unitary” theory fracturing into multiple and contradictory theories).

Second, as the unitary theory has shifted and retreated from earlier historical claims, the different theorists have engaged in a shell game, which I will identify here as “Heads-I-Win, Tails-You-Lose” originalism. For example, unitary theorists rely on English practice as a model for Article II when it supports their theory, but when critics provide contrary evidence from English practice, unitary theorists – without blinking -- say English practice is irrelevant because the English did not have an American-style separation of powers. Somehow, the practice of the British Crown counts as “executive power” but the practice of English Parliament does not count as “legislative power.” Originalists often cite colonial British practice as an anti-model for the Framing (see the use of the Declaration of Independence and the historical context for the Bill of Rights), but suddenly and conveniently, unitary theorists now cite colonial British administration as evidence for “executive power” and Article II. Post-Ratification evidence sometimes counts, and sometimes it doesn’t, depending upon which side it benefits. The Federalist Papers count, except when they don’t. Marbury counts, except when it doesn’t. Unitary theorists dismiss the problem that the text of the Constitution is silent on removal, but somehow, silence in congressional debates count as evidence of original public meaning. But somehow mid- to late-nineteenth century cases and practices count as original public meaning. This is a methodological legitimacy crisis.

Third, echoing some other commentators (see Christine Kexel Chabot), I suggest that these theorists and the Roberts Court are engaged in “Vibe Originalism”: Justices and scholars making a presentist and ideological assumption about a constitutional text, a “vibe” framed as common sense, without support from historical evidence. (E.g., the Take Care clause surely creates an indefeasible presidential power). In separation of powers cases, this “vibe” shifts the burden of proof: Instead of bearing a burden of proof to strike down a congressional statute, the “vibe” creates an assumption of judicial activism, and those who argue for judicial restraint and Congress’s power under Article I suddenly bear the burden of proof to overcome the vibe’ After historians have disputed or disproven those assumptions, the theorists and Justices return to the vibe.