Not Even Wrong: The Use of British Constitutional History to Defend the Vesting Clause Thesis

Abstract

The article discusses the Vesting Clause Theorists' claim that the British constitution of 1787 can be considered the baseline against which the Framers defined the "executive power" granted by Article II of the Constitution of the United States. While this is the best argument still remaining for the conception of broad presidential powers that they advance, it is profoundly misguided, as it necessarily relies upon a fatal misunderstanding of seventeenth and eighteenth century English (and British) constitutional history.

It details that the monarchy had lost the powers the vesting clause theorists posit to be the model for the president’s long before the framing, owing to the movement towards parliamentary supremacy and the creation of a cabinet responsible to Parliament. As the article shows, this was clear to the revolutionary generation, who accordingly could not have believed that royal powers could serve as a useful baseline for those of a president. More importantly, it demonstrates how this process of constitutional change in eighteenth century Britain destabilized the notion of executive power, such that there was no undisputed, commonsensical definition: executive power was an essentially contested concept by 1787.

The article posits further that to understand the original scope of presidential powers, one must grasp that the key feature of American political thought during the American Revolution was that it was a reaction against developments in eighteenth century British constitutional theory. The Founding Fathers drew deeply from seventeenth century constitutionalism, inheriting a deep distrust of strong executive powers. The article's historical analysis demonstrates that the arguments of Vesting Clause Theorists (such as John Yoo) resemble the defenders of absolutism that the Framers' abhorred, and are therefore in many significant respects antithetical to the fundamental political ideals that defined the intellectual context of the framing.

Keywords: Vesting Clause, Executive Power, Framing, Originalism, Legal History, Inherent Constitutional Authority, Constitutionalism

JEL Classification: K10, N40