Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77

 

  

 

Extract from Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (manuscript at 18 n.46) (bold added), <https://ssrn.com/abstract=5648310>: 

 

[I]ronically, the removal-power issue is one on which Hamilton, writing as Publius in The Federalist No. 77, can be read as suggesting, sloppily, that the Senate’s role in confirming appointments operated to limit removals as well. The Federalist No. 77, at 432 (I. Kramnick ed. 1987) (Alexander Hamilton) (“The consent of that body would be necessary to displace as well as to appoint.”). While it is possible (with some straining) to read this line, in the context of the overall passage, as intended to explain that the power to withhold consent to a new, replacement to office would operate as an indirect constraint on the President’s prerogative to remove officers, Hamilton himself reportedly acknowledged error or at least imprecision on this point at the time of the congressional debates on the State Department bill over presidential removal language.

Extract from 3 Joseph Story, Commentaries on the Constitution of the United States 390, §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833):

§ 1532. [I]n an early stage of the government, [the power of removal] underwent a most elaborate discussion [in Congress]. The language of the constitution is, that the president “shall nominate, and, by and with the advice and consent of the senate, appoint,” &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself.

§ 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . .

You can find Story’s interpretation of Hamilton’s Federalist No. 77 quoted favorably in the reports of four courts of record: McElrath v. United States, 12 Ct. Cl. 201, 214 (Ct. Claims 1876) (Loring, J.); U.S. ex rel. Bigler v. Avery, Case No. 14,481, 24 F. Cas. 902, 905 (C.C. N.D. Calif. 1867) (Deady, J.); Nicholson v. Thompson, 5 Rob. (LA) 383, 393 (La. 1843) (quoted by the attorney seeking a rehearing); Field v. Illinois, 3 Ill. 79, 166 (Ill. 1839) (Lockwood, J., concurring), superseded by state constitutional amendment. The latter 1839 decision was published roughly contemporaneously with Story’s Commentaries. You can also find Story’s position quoted in congressional debate. See, e.g., Congressional Record / Senate 2492, 2493 (Mar. 18, 1886) (Spooner, Senator); see also, e.g., Congressional Globe / Senate (Supp.) 251, 259 (Apr. 22, 1868) (Logan, House Impeachment Manager). See generally Hathi Trust for other congressional sources, and other sources generally.

Likewise, you can find this passage from Story quoted in post-bellum sources by respected commentators and authors. See, e.g., Raoul Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577, 596–97 (1980) (citing Story’s Commentaries); see also, e.g., George W. Paschal, The Constitution of the United States / Defined and Carefully Annotated 178, § 185 (D.C., W.H. & O.H. Morrison 1868) (“The removal takes place in virtue of the new appointment, by mere of operation of law.” (citing Federalist No. 77)). 

You can even find two contemporaneous reviews of Story’s Commentaries. See Story’s Constitutional Law, 38 North American Review 63 (Boston, 1834); Judge Story’s Commentaries, 14(28) American Quarterly Review 327, 364 (Philadelphia, 1833) (expressly quoting Story’s as to “great earnestness”). See generally Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010), <https://ssrn.com/abstract=1331664>; Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1, 30 n.164 (2023), <https://ssrn.com/abstract=3941605>; Aaron L. Nielson & Christopher J. Walker, The Early Years of Congress’s Anti-Removal Power, 63 Am. J. Legal Hist. 219, 224 n.19 (2023) (peer review), <https://ssrn.com/abstract=4361394>. But see generally J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV, The Contested Removal Power, 1789–2010, at 221 n.72, 225 n.41 (2013); Ray Raphael, Constitutional Myths: What We Get Wrong and How to Get It Right 277 n.36 (2013) (“Tillman tries to untangle the puzzle by making a purely legalistic distinction between the words ‘displace’ (Hamilton’s term) and ‘removal’ (the term used in the congressional debates).”); Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol’y 169 (2010), <http://ssrn.com/abstract=1473276>; Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 238 n.55 (2023) (“Let’s be plain: What Tillman [or Story?] ultimately asks us to believe is far less plausible than what he asks us not to believe, which is the long and short of it.”). Compare Joshua C. Macey & Brian M. Richardson, Checks, Not Balances, 101 Tex. L. Rev. 89, 143 n.287 (2022) (characterizing Hamilton’s “displace as well as ... appoint” language in Federalist No. 77 as an “equivocation”), with Joshua C. Macey & Brian M. Richardson, Structural Indeterminacy and Separation of Powers, 113 Calif. L. Rev. 1251, 1294 n.225 (2025) (“Joseph Story’s Commentaries interpreted Federalist 77’s reference to ‘dismissal’ to refer plainly to removal.”). 

What Professor Paulsen calls a “strain[ed]” reading was Joseph Story’s reading of Federalist No. 77. I see no evidence of any antebellum commentator or other source, or even any pre-21^st century source, squarely contesting Story on this point. Perhaps, Story’s reading was the standard understanding of Hamilton’s Federalist No. 77, and it is Professor Paulsen’s understanding of Federalist No. 77 that is “strain[ed]”?

I suppose the ghost of Hamilton should be thankful. In 2024, Professor Paulsen characterized Chief Justice Chase’s Griffin’s Case[1] decision as “bonkers”; here by contrast, Hamilton’s essay (Federalist No. 77) is only characterized, by Professor Paulsen, as “slopp[y].” William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605, 654 (2024) (using “bonkers” language), <https://scholarship.law.upenn.edu/penn_law_review/vol172/iss3/1/>; Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (manuscript at 18 n.46) (using “slopp[y]” language), <https://ssrn.com/abstract=5648310>.

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Seth Barrett Tillman, ‘Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77,’ New Reform Club (Oct. 30, 2025, 5:22 AM), <https://reformclub.blogspot.com/2025/10/strained-readings-of-constitution-and.html>.  

For another commentator on this and related issues, see: David M. Driesen, Does a Removal Power Exist? Joseph Story and Selective Living Originalism, 39 Const. Comm. 1, 3 n.9, 26 & n.125 (2024) (peer review), <https://ssrn.com/abstract=4541820>; David M. Driesen, Toward A Duty-Based Theory of Executive Power, 78 Fordham L. Rev. 71, 102 n.176 (2009), <https://ir.lawnet.fordham.edu/flr/vol78/iss1/13/>. 

[1] Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815) (Chase, C.J.). 

The Appeal: People of the State of New York v. Trump

[A]nother thing that one has to ask is, “What is the interest of justice here that Alvin Bragg, the Manhattan District Attorney, is really serving at this point?” No matter what happens at this point, Trump remains president. And the Appellate Division can’t increase the sentence. So at best, the only thing that Bragg is defending is that Trump retains the title of felon. But at worst, he’s spending a tremendous amount of judicial resources and his own office’s resources to defend this decision by Judge Merchan. 

What legitimate purpose is served by the District Attorney (“DA”) Bragg in defending the sentence and conviction below? The traditional purposes served by the criminal law include: deterrence—general and specific, retribution, restitution, and rehabilitation. I find it difficult to see how any of these traditional purposes are meaningfully served by the DA’s defending Merchan’s decision below. I suppose that the DA’s real purpose might be fairly described as some sort of institutional expressivism—which is easy to do when spending other people’s (that is, the taxpayers’) money. But if that is Bragg’s purpose, then that simply feeds into the narrative that violations of the criminal law are not now (and never were) the core of the prosecution against Trump; rather, it was always just politics. 

The above is from: Seth Barrett Tillman, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clem. L. Rev. Interview (Oct. 29, 2025), <https://www.clemsonlawreview.com/post/due-process-and-new-york-v-trump-a-conversation-with-professor-seth-barrett-tillman>, <https://ssrn.com/abstract=5677364>.

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Seth Barrett Tillman, ‘The Appeal: People of the State of New York v. Trump,’ New Reform Club (Oct. 29, 2025, 5:43 AM), <https://reformclub.blogspot.com/2025/10/the-appeal-people-of-state-of-new-york.html>;

A Short Note on IRELAND’s Presidential Election

 

See todays (FRIDAY’s) image on GOOGLE’s front page.

Today is IRELAND’s presidential election. Three candidates on the ballot paper, but one is not running an active campaign. ... So, it is really a two-horse race—two women—an independent (formerly LABOUR) and a candidate from FG (one of the two parties in the governing FF-FG coalition). The independent is the favourite according to the bookies. Odds on the FG candidate are around 10-to-1.

The leading opposition party—SINN FEIN—did not field its own candidate. In fact, SF is supporting the independent. And the smaller opposition parties all (or nearly all) also support the independent. The third candidate, the one on the ballot paper but who is not actively running a campaign, was nominated by FF—one of the two parties in the governing coalition. My understanding is that if the FF candidate does not clear 12%, then FF will sustain considerable negative financial consequences—I think a loss of its deposit. Of course, FF also sunk its own party funds into the candidate’s election prior to the candidate’s decision to stop active campaigning.

Throughout most of post-independence Irish history, FF and FG competed with one another. Indeed, immediately after independence, the two parties’ antecedents fought on opposite sides in a civil war. Lately they have become coalition partners—the Irish uniparty.

Seth Barrett Tillman, ‘A Short Note on IRELAND’s Presidential Election,’ New Reform Club (Oct. 24, 2025, 6:51 AM), <https://reformclub.blogspot.com/2025/10/a-short-note-on-irelands-presidential.html>; 

By-Election in the U.K.

 

Welsh By-Election for Senedd (the devolved Welsh parliament)—35% swing against LABOUR Party , <https://news.sky.com/story/plaid-cymru-win-caerphilly-by-election-in-humiliation-for-labour-13455893>. 

The seat was taken by the Welsh regional party (nominally seeking independence from the UK) … with 15,961 votes (47%). This is a first-past-the-post or plurality victory. Nigel Farage’s Reform UK came in second … with 12,113 votes (36%). And Labour came in third … with 3,713 votes (11%). Conservatives crash to less than 1,000 votes (2%). Both Conservatives and the Liberal Democrats lost their deposit.

Seth Barrett Tillman, ‘By-Election in the U.K.,’ New Reform Club (Oct. 24, 2025, 6:17 AM), <https://reformclub.blogspot.com/2025/10/by-election-in-uk.html>; 

A Letter to AG Paxton and Others

Attn: Ken Paxton, Attorney General of Texas

Dear AG Paxton,

I am a U.S. citizen living abroad. I teach law in a foreign law school. I grew up in New York, and I have practiced law in the District of Columbia and Delaware.

The U.S. State with the greatest number of federal judicial vacancies is Texas—with TEN federal district court vacancies. Texas has TEN Article III vacancies. The rest of the country has collectively 50 vacancies. 1-in-6 of the vacancies are in Texas! As of October 21, 2025, there have been no nominations to ANY of the TEN Article III vacancies in Texas. Texas voted for Trump in 2016, 2020, and 2024. Texas has continuously sent two Republicans to the U.S. Senate. And Texas’ U.S. House delegation strongly leans majority Republican: circa 2-to-1.

I have written both Texas’ two U.S. senators on this issue. I would think that your office and your Texas constituents should raise (if not press) this issue with the administration.

Sincerely,

Seth

Seth Barrett Tillman, ‘A Letter to AG Paxton and Others,’ New Reform Club (Oct. 22, 2025, 4:02 AM), <https://reformclub.blogspot.com/2025/10/a-letter-to-ag-paxton-and-others.html>; 

A 1970 Judicial Decision

A 1970 judicial decision—Corbett v Corbett (otherwise Ashley) [1970] 2 All English Reports 33 (probate, divorce, and admiralty division) (Ormrod J):

Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not a woman. I think, with respect, that this is a more precise way of formulating the question than that adopted in paragraph 2 of the petition, in which it is alleged that the respondent is a male. The greater, of course, includes the less but the distinction may not be without importance, at any rate, in some cases. The question then becomes, what is meant by the word “woman” in the context of a marriage, for I am not concerned to determine the “legal sex” of the respondent at large. Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors’ criteria, i.e., the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. The real difficulties, of course, will occur if these three criteria are not congruent. This question does not arise in the present case and I must not anticipate, but it would seem to me to follow from what I have said that the greater weight would probably be given to the genital criteria than to the other two. This problem and, in particular, the question of the effect of surgical operations in such cases of physical inter-sex, must be left until it comes for decision. My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth. It follows that the so-called marriage of September 10, 1963, is void.

I must now return briefly to counsel for the respondent’s submissions. If the law were to recognise the “assignment” of the respondent to the female sex, the question which would have to be answered is, what was the respondent’s sex immediately before the operation? If the answer is that it depends on “assignment,” then if the decision at that time was female, the respondent would be a female with male sex organs and no female ones. If the “assignment” to the female sex is made after the operation, then the operation has changed the sex. From this it would follow that if a 50 year old male transsexual, married and the father of children, underwent the operation, he would then have to be regarded in law as a female and capable of “marrying” a man. The results would be nothing if not bizzare. I have dealt, by implication, with the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the purpose of marriage. The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental. These submissions, in effect, confuse sex with gender. Marriage is a relationship which depends on sex and not on gender.

Seth Barrett Tillman, ‘A 1970 Judicial Decision,’ New Reform Club (Oct. 12, 2025, 9:41 AM), <https://reformclub.blogspot.com/2025/10/a-1971-judicial-decision.html>;