“Vesting” Uses Spreadsheet, 1776-1789

I have updated “Vesting,” posting the results of a search for “Vested” in UVA Founding Era Collection, 1776-1789, with over 1,000 uses. The spreadsheet is on SSRN here. An updated paper is here.

Special thanks to my research assistants Michael Albalah, Anne Brodsky, Xinni Cai, Chloe Rigogne, Emily Rubino, Tatum Sornborger, and Colin Shea.

Bottom line: The use of “all” in Art I & its absence in Art II both may be significant, in favor of non-delegation but against unitary executive.

“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: The president possesses executive powers exclusive from congressional limitations (i.e., they are indefeasible). Many originalists assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.
This Article offers a close textual reading of the word “vesting” and an examination of its eighteenth-century usage and 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 word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. Its ordinary meaning was most likely a simple grant of powers without signifying the impermissibility of legislative conditions, such as a good-cause requirement for removals.
Other words used in the Constitution or by the framers to convey exclusivity or indefeasibility (e.g., “all,” “exclusive,” “sole,” “alone,” or “indefeasible”) are missing from the Executive Vesting Clause.
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.” However, the era’s available dictionaries from 1640 to 1846 defined “vest” without reference to exclusive or indefeasible powers, but instead in terms of individual property rights (usually limited to landed property, not offices or powers). Other legal documents and a database of founders’ papers indicate a usage ranging from “fully vested” to “partly vested,” so that the “vesting” by itself would signify less completeness.
If the Executive Vesting Clause did not convey indefeasibility, it is unclear what remains of the unitary theory’s originalist basis. On the other hand, the “all” in the Legislative Vesting Clause may be more legally meaningful for non-delegation.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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