'Vesting' Uses in UVA Rotunda Founding Era Collection, 1776-1789

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). Many originalists generally tend to assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.

Unitary judges and scholars, however, have not provided historical evidence that “vest” had such an original public meaning. This spreadsheet is part of "Vesting" (forthcoming, Stanford Law Review 2022, at SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213), an article offering 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.

This survey of the word "vest" ("vested," "vesting," etc.) in the Framers’ writings in the University of Virginia's Founding Era Collection (the papers of Washington, Adams, Hamilton, Madison, Jay, and Jefferson, and the Ratification debates) from 1776 to 1789 produces approximately 1,000 different uses. Most of the uses refer to "vesting" by itself as a grant of power, but approximately 10% modify the word "vesting" with words like "fully," "solely," "exclusively," "completely," or "absolutely," or with references to "plenipotentiary" or "all" power (or similar modfiers), specifying a more robust kind of vested power. Conversely, approximately 1% of the uses added words like "limited" or "partial" vesting and the like, specifying a weaker kind of vesting. These uses suggest that the word "vest" by itself did not signify complete or unconditional power, but it needed to be supplemented. This survey indicates a range of usage, from “fully vested” to simply vested to “partly vested,” and uses like "fully vested" appeared frequently in the context of military authority, diplomatic authority, and legislative powers over taxation and commercial regulation, suggesting that some kinds of traditional executive power and legislative power might be more complete, but not all kinds of such powers.

This study of “vesting” in eighteenth-century constitutions and databases of Framers’ writings so that the “all” in the Legislative Vesting Clause may be more legally meaningful and potentially more support for the non-delegation doctrine, but the absence of "all" or similar words from Article II weakens the unitary executive theory of indefeasible executive power.

"Vesting" article text:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213

Founding Era Collection site:
https://rotunda.upress.virginia.edu/founders/default.xqy?keys=FGEA-info-search