In Trump v. Slaughter, handed down at the end of June, the Supreme Court ruled that because the Federal Trade Commission exercises executive powers, the president has the power to fire the commissioners. Justice Sonia Sotomayor, dissenting, repeatedly cites Alexander Hamilton for the proposition that limits on the presidential removal power are constitutional.

On page 10, she accuses the majority of thinking it “knows better” than Hamilton (among others). On pages 15–16, she quotes Federalist No. 77, in which Hamilton says the consent of the Senate “would be necessary to displace as well as appoint” and adds, “A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.” On page 19, she says that some members of the first Congress “believed (as Hamilton did) that the Constitution required Senate consent for all removals.”

All of this is in support of a strong claim by Sotomayor: “Beginning at the founding, there is no evidence that those who shaped or ratified the Constitution adopted the majority’s general rule of at-will removal.”

Her argument about Hamilton has, if not a fatal flaw, at least a highly debilitating one: Hamilton changed his mind. On June 16, 1789, Representative William Loughton Smith quoted the same passage of the Federalist in a debate during the first Congress about the removal power. In a letter a few days later, Smith records that on June 17, Representative Egbert Benson sent him a note saying that Hamilton himself, after the previous day’s debate, had told Benson “that upon mature reflection he had changed his opinion & was now convinced that the President alone should have the power of removal at pleasure” (emphasis in original).

Double hearsay, you might say if you wanted to dismiss this account. But there’s also Hamilton’s public comment in 1793 that “the power of removal from office is an important instance” of the fact that “the Executive Power of the Union is completely lodged in the President.”

The majority mentions the 1793 comment. (It also questions the meaning of displace, in line with some scholars.) Sotomayor deals with it in a footnote, writing, “To the extent the majority identifies other later statements by Hamilton arguably in tension with his initial view in The Federalist . . . ‘changing minds and inconstant opinions don’t usually prove the existence of constitutional rules.’”

This won’t do. First, the 1793 comment isn’t “in arguable tension” with the view that the Senate has to be involved in firing an executive-branch appointee; it flatly contradicts it. Second, there’s the context. The majority isn’t basing its argument on Hamilton’s support for an exclusive presidential power to remove appointees. Sotomayor is, on the other hand, maintaining that there is no evidence that anyone in the Founding era held such a view. And that’s not true.