Herein of 'Herein Granted': Why Article I's Vesting Clause Does Not Support the Doctrine of Enumerated Powers

Abstract

Reasoning from the nonparallel wording of the Constitution’s three Vesting Clauses, scholars across the ideological spectrum read Article I, Section 1 to establish the principle that Congress may exercise only powers affirmatively enumerated in the text of the Constitution. This “enumerationist reading” of the Clause is deeply flawed and should be discarded. It fits the Clause’s text poorly. It is in tension with important facts about constitutional structure. Perhaps for those reasons, it is not a reading of the Clause that Americans recognized in the Constitution’s first years: in the First Congress, nobody read the Clause that way, despite ample incentives to do so. If the nonparallel phrasing of the three Vesting Clauses is to be given substantive significance, a better way to do it is to read Article I, Section 1 as a limit on where legislative powers are vested, not as a limit on what powers Congress may exercise. But that reading is not free of difficulties, either. The best way to understand the non-parallel phrasing is probably to regard it as an accident of the drafting process, one that carries no substantive significance in constitutional law. Close reading is an important interpretive method, but not every word choice in a document is substantive, even when that document is the Constitution.