The Bastille Key on Display at Mount Vernon
Andrew Hyman

When the incumbent President, George Washington, received a key to the recently-destroyed Bastille as a gift from a friend in France during the French Revolution, should Washington have gotten explicit congressional permission to keep it, assuming that Washington was an officer covered by the Foreign Emoluments Clause (FEC)?  Answering that question is not easy; it depends on who the friend in France was, whether the friend was acting on anyone else’s behalf, whether Congress was made aware of the gift, and whether Congress acquiesced either to the President’s conclusion that the gift was not subject to the FEC, or to the President’s assumption that Congress would have no problem with the gift even if it was subject to the FEC.  The FEC says:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

The friend in France who gave the key to Washington was the Marquis de Lafayette.  According to an old article about the Bastille keys from 1887, “La Fayette secured the key of the main entrance—Porte St. Antoine—and sent it to General Washington, and it is now to be seen at Mount Vernon." During that time, Lafayette headed the Paris militia and then took command of the National Guard of France; there were many other keys to the Bastille, only some of which made their way into Lafayette's possession.  Lafayette was apparently given the key in question during July of 1789 as a gift by Jacques Pierre Brissot.  Eight months later, in March of 1790, Lafayette decided to re-gift the key to George Washington, and I am not aware that anyone urged or commanded Lafayette to do so.

In Lafayette’s letter to Washington, he wrote:

 Give me leave, My dear General, to present you With a picture of the Bastille just as it looked a few days after I Had ordered its demolition, with the Main Kea of that fortress of despotism—it is a tribute Which I owe as A Son to My Adoptive father, as an aid de Camp to My General, as a Missionary of liberty to its patriarch.

Washington reported the gift to Secretary of State Thomas Jefferson and the gift was well-publicized, so the U.S. House and Senate had ample opportunity to explicitly give their permission, or explicitly request that their permission be solicited, or explicitly deny their permission, and Congress chose to do none of those things.  The blockquote above from Lafayette implies that it was purportedly a personal gift not made in an official capacity; Lafayette was not a king, a prince, or a foreign state, and did not purport to be acting on behalf of any king, prince, or foreign state.  The gift by Lafayette apparently took the French government by surprise, according to a report by Louis Otto, Chargé d’ Affaires, on August 4, 1790:

In attending yesterday the public audience of the President, I was surprised by a question from the Chief Magistrate [George Washington], "whether I would like to see the Key of the Bastille?" One of his secretaries showed me at the same moment a large Key, which had been sent to the President by desire of the Marquis de la Fayette.

Given all these facts, Washington’s behavior in this matter strikes me as, at most, a de minimis violation of the FEC, and probably not even that.  Perhaps Jefferson  mentioned the matter to some leaders in Congress who reported back that it was a non-issue, and that was that.

Anita Krishnakumar: Statutory History
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted Statutory History (Virginia Law Review, forthcoming) (80 pages) on SSRN.  Here is the abstract:

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes. Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis. A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning. In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history. On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators. Scholars have, largely uncritically, tended to accept these distinctions. But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning. Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, the Article catalogues five different forms of statutory history inferences employed by the modern Court. It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject. In the end, the Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history.

Agreed.  (I think.)  I have never been comfortable, even as a textualist, with Justice Scalia's categorical rejection of legislative history.  It doesn't seem to me that it necessarily follows from textualism.  Textualism's core claim is that the text is decisive.  The core criticism of legislative history is that it is mostly ambiguous.  I think one can accept both claims without making a categorical rejection of legislative history.


Gerard Bradley on Constitutional Value Judgments
Michael Ramsey

At Law & Liberty, Gerard Bradley (Notre Dame): The Constitution’s “Value Judgments”.  From the introduction:

The “Noble Lawyer” in Hadley Arkes’ recent essay worries about “giving free rein to life tenured Justices to apply their own understanding of natural law.” Hadley’s correspondent captures here the concern at the heart of contemporary conservative constitutionalism. But the expression falters. “Free rein” is too strong: who, after all, enjoys such sovereign freedom in any job? It is rather a question about judges resorting to “natural law” when it is necessary in order to interpret and apply the constitutional text, especially the guarantees of human rights sprinkled throughout it.

“Natural law” is one way to name the object of that recourse. But that term still spooks many constitutional lawyers, who cannot forget the derision heaped upon it by legal luminaries such as Oliver Wendell Holmes (and also by Supreme Court Justice Hugo Black). Why not call it instead, “a sound understanding of genuine human flourishing, and of justice predicated upon that account.” That or something like it is less forbidding than “natural law.” And it comes without the baggage.

And from further on:

Justice Scalia more carefully phrased the central conservative worry in his powerful Casey dissent: whether the Court’s “pronouncement of constitutional law rests primarily on value judgments.” The meaning of “value judgment” in this great Justice’s constitutional conservatism stands in contrast to specifically “legal” reasoning. From Casey: “As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about.”

The truth that a human person comes into being at conception is not usefully described as a “value judgment.” It is a philosophical conclusion which follows certainly upon established scientific facts, much like the conclusion that a human person ceases to be—is dead—when all brain function is gone. The Court’s conservatives have nonetheless all shared Scalia’s contrary position. He wrote in Casey that Roe “is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment.”


Conservatives’ aversion to judicial “value judgments” is not limited to abortion. Against assertions that the Framers intended the Eighth Amendment to exclude capital punishment, Justice Scalia (in his 1988 article, “Originalism: The Lesser Evil) that “one must not only say this but demonstrate it to be so on the basis of some textual or historical evidence.” Just so. But then the Justice made a reductio argument that signaled his opposition to judicial “value judgments,” tout court. Scalia wrote that, if one is “willing simply to posit such an intent for the ‘cruel and unusual punishment’ clause, why not for the due process clause, the equal protection clause, the privileges and immunity clause, etc.?”  


Are we to abridge the Constitution, shear off its meaning, edit it down, whenever applying it faithfully calls for a “value judgment”?

Justice Scalia might have figured that multiplying examples would cause readers to blanch. Maybe some will, and with good reason, depending upon what one thinks of the “values” of those who presently occupy the federal bench. But no one’s visceral reaction affects what the text of the Constitution says, or settles what those who made it our fundamental law over 200 years ago understood it to mean.  

And in conclusion:

Conservatives’ animus towards “value judgments” is not an answer to parallel questions about constitutional exegesis (if you will). They do not defend it as a sound tool for ascertaining old meaning nearly as much as they depend upon it to justify judicial review. It is “legitimacy”—both “theoretical” (that is, substantive) and practical (as a matter of popular acceptance of an often unpopular invalidation of democratically enacted law)—that concerns them. The looming potential for making law according to one’s own biases (or for merely being accused of doing so) is met by the Justices’ insistence that they are, instead, like umpires “calling balls and strikes.”

Were the Constitution being written today, the facts and fears marshaled by constitutional conservatives would rightly feature in any discussion of how much authority to assign to the judiciary. Worries about the progressivism of legal elites, or of wider contemporary moral pluralism (the sitz im leben of a Court mired in the middle of a culture war), and perceptions of popular attitudes toward courts would all rightly figure into writing a new Article III. Certainly, a dramatically reduced role for the Supreme Court in our constitutional system would be on the agenda.

But the Constitution that some think we should have is not the one that we do have.

I think this essay has a bit in common with the one noted here (and critiqued here).



Ed Whelan on Josh Hammer on Common Good Originalism
Michael Ramsey

At Public Discourse, Ed Whelan (Ethics and Public Policy Center): The Unsoundness and Imprudence of “Common-Good Originalism”.  From the introduction:

The immediate aftermath of Justice Amy Coney Barrett’s appointment to the Supreme Court is a strange time to urge conservatives to repudiate Justice Antonin Scalia’s twin interpretive methodologies of originalism and textualism. But that’s exactly what Josh Hammer does in his recent Public Discourse essay, in which he proposes to bolster a conservative policy agenda with a substitute “jurisprudential framework” that he labels “common-good originalism.”

I’m very puzzled by Hammer’s piece. Let’s start with his critique of the “regnant ‘legal conservative’ status quo” that he properly associates with Justice Scalia. Under Scalia’s approach, the duty of a judge is to interpret legal texts according to their objective meaning at the time they were adopted. For constitutional interpretation, his approach has become known as originalism (or, more specifically, public-meaning originalism). In the field of statutory interpretation, it is typically called textualism. But it’s fair to refer to them both, as Hammer does, under the common rubric of originalism.

Hammer offers two arguments against Scalia’s originalism. First, he contends that it “was dealt a grievous blow in last June’s Bostock v. Clayton County” ... 

Hammer claims, second, that Scalia’s originalism is “a morally denuded, overtly positivist jurisprudence that is at odds with the broader Anglo-American legal tradition and belies our unique American constitutional order’s unambiguous prioritization of substantive ends.”

And on the second point:

Scalia believed that judging is distinct from legislating; that judicial interpretation is a craft that requires judges not to indulge their own moral or policy preferences; that lawmakers—the Framers and ratifiers of constitutional provisions and ordinary legislators—embed values in the Constitution and in statutes; and that judges properly give effect to those values in construing legal texts to mean what they say. I wonder how many of Hammer’s readers grasp that that set of beliefs is what he is dismissing as “a morally denuded, overtly positivist jurisprudence.”

Hammer is simply wrong when he claims that Scalia’s originalism, properly understood, “is at odds with the broader Anglo-American legal tradition and belies our unique American constitutional order’s unambiguous prioritization of substantive ends.” The very authorities that Hammer invokes in support of his common-good originalism undercut his claim. In his famous Federalist No. 78, Alexander Hamilton predicated the very existence of the power of judicial review—the ability, that is, of a judge to decline to enforce a statute on the ground that it violates the Constitution—on the proposition that judges must be neutral arbiters of legal meaning

In conclusion:

To be sure, there are plenty of reasons (not just Bostock) to wonder how consistently the originalist justices will coalesce in practice and especially how willing they will be to revisit wrong precedent. But I don’t see how declaring the need for a new conservative approach to judging is likely to help matters.

Agreed, but arguments such as Josh Hammer's (and related arguments by Adrian Vermeule) are important in illustrating the range of choices in constitutional interpretation.  The debate is often cast as between a conservative originalism and a liberal evolving constitutionalism.  But conservatives don't have to be originalists, and originalism isn't necessarily conservative.  On one dimension, the opposite of  liberal evolving constitutionalism isn't originalism; it's conservative evolving constitutionalism.  Originalism is an intermediate position that hopes to constrain both sides.


A Reply to David Weisberg on "high ... Misdemeanors"
Rob Natelson

In arguing against my conclusion that “high . . . Misdemeanors” means in the Constitution what it meant in contemporaneous law, David Weisberg posits the example of a president suddenly converting to Quaker pacifism and refusing the defend the country. The House impeachment managers cited an analogous example: the president unexpectedly campaigning for totalitarianism.

Yet it must be admitted that those eventualities are very far-fetched, as illustrated by the fact that they have not happened in the 232 years we have lived under the Constitution. And for good reason: the Constitution was designed to screen out "loose cannons" from the presidency. That was one reason for the complicated presidential election system and for the Constitution’s age, residency, citizenship, and “natural born” requirements—not to mention the short presidential term.

Against the remote possibility of a president suddenly going berserk, there were countervailing factors far more immediate to the Founders—factors arguing for their using the expression “high . . .Misdemeanor” the way the law used it. I won’t repeat here all the evidence mentioned in my article on the subject. But here are a few considerations that would have influenced the Founders in an immediate way:

* The legal meaning of “high misdemeanors” appears to have been the most common lay meaning also. It was widely repeated in non-legal as well as legal sources. For example, contemporaneous encyclopedias—including the Encyclopaedia Britannica—uniformly defined “high misdemeanor” as a very serious crime (“next to high Treason”). The same general usage turns up in early congressional statutes.

* In Britain, officers served for indefinite terms. By contrast, the president and vice president were to serve only four years. The Founders seem to have viewed this short term as a partial substitute for British-style impeachment, so it made sense for them to narrow the grounds from what they had been in Britain. I think there is little dissent on this point among impeachment scholars; the only argument is about how much the Founders wished to narrow the grounds.

* A specific or formulaic, rather than loose, construction of the grounds for impeachment serves to preserve the independence of the presidency from Congress. Preserving executive independence certainly was a consideration far more immediate to the Founders than the remote possibility that the president with no prior leanings in that direction might suddenly become a strict pacificist.

*Then there is the construction of the Impeachment Clause itself: Treason, Bribery, other high Crimes and Misdemeanors—offering one example of a high crime, one of a high misdemeanor, and then general wording covering both categories.

Mr. Weisberg argues that “no interpretation of the Constitution is satisfactory if . . . as a practical matter, it generates an outcome that is significantly less satisfactory than that which would be generated by a competing interpretation.” I would caution, however, against interpreting the original Constitution based on what we moderns consider “practical” or “satisfactory.” It is the views of the Constitution’s ratifiers (and, indirectly its framers) that are decisive on such points—not ours.

Jack Beermann & Gary Lawson: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts about Counting Electoral Votes
Michael Ramsey

Jack Michael Beermann (Boston University School of Law) & Gary Lawson (Boston University School of Law) have posted The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes (40 pages) on SSRN.  Here is the abstract:

In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. Further, the objections raised to two states’ electoral votes on January 6, 2021, were not proper within the terms of the Act, and therefore, even if Congress has the power specified in the Act, congressional action rejecting states’ electoral votes would have been contrary to law. While state executive or state judicially-ordered departures from the requirements of state election laws in presidential elections might violate the federal Constitution’s requirement that electors be chosen as specified by state legislatures, determining whether this has taken place is much more complicated than simply examining the language of state election statutes. We suggest that making this determination requires a careful examination of state interpretation traditions that we decline to undertake in this brief essay on the constitutional process for counting electoral votes.

Professor Beermann presented an earlier version of this paper at USD Law School last month.  It's fun, as the title advertises.


Evan Bernick: Constitutional Hedging
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Constitutional Hedging (50 pages) on SSRN.  Here is the abstract:

We often face normative uncertainty—uncertainty about what we ought to do. How much aid ought we to give developing nations? Ought we take steps today that will reduce our welfare but increase the welfare of future generations? Should we eat nonhuman animals? Should our answers to these questions be dictated by fixed moral norms, likely consequences, our notions of what a virtuous person would do, some combination of those things, or other considerations entirely?

We have good reasons to think that judges face forms of normative uncertainty when deciding cases under the U.S. Constitution. But the relevance of normative uncertainty to constitutional decisionmaking has gone largely unexplored. More specifically, there is wanting inquiry into whether judges should take into account their uncertainty about whether the constitutional theory in which they are most confident—common-law constitutionalism, originalism, popular constitutionalism, etc.—ought to be followed in a particular case, rather than another theory that they deem plausible but in which they are less confident. The conventional wisdom is that judges should follow the theories in which they are most confident unless and until they lose confidence in them.

This Article challenges the conventional wisdom by arguing that constitutional hedging ought to be taken seriously as a strategy for constitutional adjudication. By constitutional hedging is meant a procedure whereby judges routinely evaluate potential constitutional decisions under multiple constitutional theories that they deem plausible, taking into account their confidence in those theories and the perceived gravity of the stakes under each. Thus, a judge who is most confident in originalism might in a given case deliberately make a decision preferred by common-law constitutionalism if the stakes are much higher under common-law constitutionalism than they are under originalism. The Article canvasses the philosophical literature on normative uncertainty; provides reasons for thinking that judges encounter normative uncertainty in constitutional cases; and constructs a provisional hedging framework to test hedging’s plausibility, adapting a proposal that William MacAskill, Krister Bykvist, and Toby Ord have put forward for decision under normative uncertainty more generally. The Article applies the framework to three weighty constitutional questions. It then confronts a litany of objections to taking hedging seriously.

Update: At Legal Theory Blog, Larry Solum says: "Another article on this important but neglected topic.  Highly recommended.  Download it while it's hot!"


A Comment on Professor Natelson’s Interpretation of “high...Misdemeanors”
David Weisberg

I’d like to comment on one part of Prof. Robert Natelson’s very interesting recent post, headed, “When Can an Originalist Scholar Begin with the Constitution’s Text?”  Prof. Natelson focuses on scenarios in which it is unhelpful for an originalist to begin an interpretation by focusing on the text of the Constitution, and then only later turn to external sources to confirm the text-based interpretation.  One scenario in which that approach is not optimal is where “[a] word or phrase with an ordinary meaning appears in the Constitution, but as a legal term of art”. 

An example that Prof. Natelson cites is the phrase “high...Misdemeanors” in the impeachment provision of Art. II, Sec. 4.  Prof. Natelson has determined that, as a legal term of art around the end of the eighteenth century, “high Misdemeanors were serious crimes not meriting the death penalty, such as bribery (which the Constitution mentions in this context) and assault.”  He therefore concludes that the technical, legal meaning is the one that should be applied to the phrase as it appears in Art. II, Sec. 4.

I consider myself a textualist when engaged in constitutional interpretation; no interpretation of the Constitution is satisfactory if (a) it either creates, explicitly or implicitly, an internal inconsistency with another clearer, less controversial constitutional provision, or (b) as a practical matter, it generates an outcome that is significantly less satisfactory than that which would be generated by a competing interpretation.  In my view, the problem with Prof. Natelson’s interpretation of “high Misdemeanors” is that no reasonable person—and certainly no group as astute, far-sighted, and clear-minded as the framers—would as a practical matter accept the rigidly constricted impeachment provision that emerges from that interpretation.

If Prof. Natelson is correct, then the framers intended that the president could properly be removed on impeachment only if he or she had committed a crime.  But suppose, soon after a president took office, he accepted the teachings of the Quakers (whose adherence to non-violence was well known to the framers) and therefore refused, as commander-in-chief, to defend the United States against an armed enemy attack.  (One can easily posit an unlimited number of almost equally dangerous circumstances, none of which would involve criminality.)  Are we to believe that the framers would have been unable to imagine that scenario, or that, when they did, they would have wanted that president to continue for years in office, exempt from impeachment because innocent of crime?

The Oxford English Dictionary defines “misdemeanour” as: “Evil behaviour, misconduct. Now rare.”  This definition, although now rare, has been valid since at least 1494, and the O.E.D. cites an instance of its usage in 1775.  The O.E.D. defines “high” in the relevant sense as: “Of great consequence; important, weighty, grave, serious.”  This definition has been valid since circa 1200.

I accept Prof. Natelson’s research regarding the meaning of “high Misdemeanor” as a legal term of art.  But the conclusion I draw is that sometimes a phrase in the Constitution had a technical meaning as a legal term of art in the late eighteenth century, and that technical meaning was not the one invoked by the framers.  Instead, we ought to conclude that the ordinary non-technical meaning—here, the understanding that “high Misdemeanors” could refer to seriously evil behavior or grave misconduct—was relied on by the framers, because that is the only interpretation that makes practical sense.     

Spending Tax Revenue on the "General Welfare" is Arguably Legal but Spending Borrowed Money for that Purpose Isn’t
Andrew Hyman

In October last year, I wrote a blog post titled, There's a Constitutional Limit on Borrowing by Congress Even Without a Balanced Budget Amendment.  Since we’re on the brink of much more federal indebtedness, here are some more thoughts on this subject.   The Constitution gives Congress vastly less discretion about how to spend borrowed money as compared to how tax revenue is spent, and here are the most pertinent clauses:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

There has always been controversy about what Congress can spend tax revenue on, but there's been relatively little discussion about whether congressional power to spend borrowed money is as broad as congressional power to spend tax revenue.  It’s not.

So far, I have found only one scholar who apparently argued that borrowed money can be spent by Congress just as freely as tax revenues can be spent.  That argument was put forth in the Manual of the Constitution of the United States of America by Timothy Farrar (1867) starting at page 315:

Debts must be paid, and defence and welfare provided for, whether taxes are laid and collected or not. Else what is the use of borrowed money, or the proceeds of public lands, or any other sources of revenue?

Of course, the answer to Farrar's question is this: borrowed money is useful for carrying into execution the enumerated powers laid out in the Constitution, but those powers do not include a general power to promote the general welfare.  The Constitution places no limits on how much money Congress can borrow, but it does limit the objects upon which borrowed money can be spent; those limits become weaker when tax money is spent.

Timothy Farrar seems to be an outlier on this issue.  Professor Gary Lawson agrees with Professor David Engdahl that, "the spending allusion in the Taxing Clause does not even colorably reach borrowed sums."  Engdahl has argued that once Congress borrows money, it is generally authorized to spend that money not by the Taxing Clause, but rather by the Property Clause, which lets Congress “dispose of and make all needful Rules and Regulations respecting the Territory or other Property [e.g. borrowed money] belonging to the United States...."  Lawson argues against Engdahl’s position by emphasizing that the Property Clause is located in Article IV, Section 3 instead of in Article I, Section 8 where one would expect to find it if Engdahl were correct.  I agree with Lawson about that.  But Lawson and Engdahl are both right that, assuming the Taxing Clause authorizes tax money to be spent on the general welfare, the Taxing Clause does not authorize borrowed money to be spent that same way.

Economists will tell you that the most sensible way to look at national debt is not the very scary number of total dollars, but instead the slightly less scary percentage of gross domestic product.  It was about 60% in the year 2000.  At the end of 2020 it was 99.3%.  So you get an idea where we're headed, and maybe the Constitution can apply some brakes. 

Jed Shugerman: 'Vesting'
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted 'Vesting': Text, Context, Dictionaries, and Unitary Problems (54 pages) on SSRN.  Here is the abstract:

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible).

However, unitary judges and scholars have not provided historical evidence that “vest” had such an original public meaning. This Article offers a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

Modern assumptions about “vesting” for official powers are likely semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of “vested rights.” They also reflect flawed assumptions about English royal removal powers, Blackstone, and the context of early American administration.

In the first survey of the word “vest” in fifty of the era’s available dictionaries from 1640 to 1846 (33 before 1787, 18 after 1787), this Article finds that they generally defined “vest” in terms of individual property rights (usually landed property) without any reference to official powers. Some legal dictionaries referred in Latin to full possession of land or estates, but this evidence is less relevant to ordinary public meaning and to offices. Few had any definitions related to offices and powers, and none referred to exclusive or indefeasible powers.

Other early constitutions (especially the Articles of Confederation), the Convention and Ratification debates, and related documents similarly reflect a limited meaning. The word “vesting” first appeared in the Convention in the Virginia Plan, in a context of relatively weak anti-unitary executive power. A method of “intratextualism” and the canon of expressio unius offers clues about the meaning of “vest” when used in constitutional contexts. Other clauses often used other words to convey exclusivity and completeness: “all,” “exclusive,” “sole,” and “alone.” However, those words are missing from the Executive Vesting Clause.

This research has implications for Article I and Article III “vesting” (both for and against claims about formal non-delegation and jurisdictional exclusivity). If the Executive Vesting Clause does not convey exclusivity (and given the weaknesses of relying on “take Care,” “faithful execution,” or the Decision of 1789), it is unclear what remains of an originalist argument for Myers, Free Enterprise, Seila Law, and indefeasible removal powers.