Venality: A Strangely Practical History of Unremovable Offices and Limited Executive Power

Jed Handelsman Shugerman*

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood that monarchs lacked a general removal power and why so many public offices were treated as private property: a surprisingly functional “venality” system. Many powerful officeholders in European monarchies bought their offices, and in return for their investment, their office was protected as property—especially in England. European administration depended upon a flexible mix of removable patronage offices and unremovable offices for sale. Montesquieu rejected “displacement” at will (i.e., removal at pleasure) as a tool of “despotic government,” and he endorsed “vénalité.” He and many English legal writers defended such limits on removal as a practical system of family investment, incentives, checks, and balances. The sale of offices as property may seem strange and corrupt today, but it was a practical foundation for the nation-state, modern administration, and colonial expansion.

This history shows how removal was neither necessary nor sufficient for law execution. It offers a consistent explanation for the text of Article II, the Federalist Papers, and the First Congress’s debates and statutes. Thus, unitary theorists have not met their evidentiary burden to support their historical claims about Article II implying removal as a matter of original public meaning.

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© 2024 Jed Handelsman Shugerman.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor, Boston University School of Law.  My gratitude to Ethan Leib and Andrew Kent, together the “faithful trio”; to Jane Manners and Lev Menand, the “three permissions” duo; and to Gary Lawson and David Seipp for extensive comments.  Thanks to Michael Asimow, Jack Balkin, Jack Beermann, Mary Bilder, Marty Flaherty, Jonathan Gienapp, Christopher Havasy, Rick Hills, Richard Kay, Andrea Scoseria Katz, Tom Lee, Joshua Macey, Michael McConnell, Gillian Metzger, Julian Mortenson, Nicholas Parrillo, Farah Peterson, Richard Primus, Jack Rakove, Noah Rosenblum, Bijal Shah, Jodi Short, Larry Solum, and Daniel Walters; to Mike Ramsey, Mike Rappaport, Ilan Wurman, and the Originalism Conference at the University of San Diego; to the National Conference of Constitutional Law Scholars at the University of Arizona; to the 2024 ABA Administrative Law and Regulatory Practice Conference; to Annie Brodsky, Daniel Kweon, Kaylyn Ling, and Chloe Rigogne for research assistance; and to Danya Handelsman for her indefeasible support.