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This Article analyzes Joseph Story’s discussion of the power to remove executive officers in his famous Commentaries on the Constitution of the United States. This Article’s analysis of Story’s views casts a fresh light on the modern Court, suggesting that the Supreme Court practices living originalism by favoring originalist sources that support its own views of what political arrangements best meet current needs. In spite of burgeoning interest in the unitary executive theory, which maintains that the Constitution grants the President unfettered removal authority, Story’s landmark treatment has not received sustained attention. Yet Joseph Story served as an early Supreme Court Justice, wrote the most highly regarded early treatise on constitutional law, and made Harvard Law School a leading institution through his teaching and scholarship. His views deserve to be taken seriously. Story’s Commentaries suggest that the Constitution does not empower the President to unilaterally remove executive officers. Instead, Story explains, removal occurs by operation of law when the Senate approves a new nominee to replace an incumbent official that the President wishes to replace. Story’s view enjoys substantial originalist support. Indeed, evaluation of the evidence supporting this view shows that the Supreme Court’s contrary view stems from selective originalism—where only a portion of constitutionally germane text is analyzed and only a moment of constitutional history is given any weight.
