Herein of “Herein granted”: why Article I’s vesting clause does not support the doctrine of enumerated powers

Richard Primus* Introduction Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]”[1] That text is sometimes called the Vesting Clause,[2] or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses.[3] And…

Lawyers and historians argue about the Constitution

Jack M. Balkin* Introduction The quarrel between lawyers and historians about the proper use of history in constitutional law is an old one. It predates the rise of conservative originalism in the 1970s and 1980s. For example, the term “law office history”—now regularly employed to criticize lawyers who engage in historical arguments that are opportunistic,…

Litigating imperfect solutions: state constitutional claims in federal court

Michael T. Morley[1] Introduction It is somewhat ironic that a sitting federal judge, Jeffrey S. Sutton, would write a book challenging the standard model of American constitutional law, which presents life-tenured federal judges enforcing the U.S. Constitution as the primary defenders of individual liberty against racist states, craven elected officials, overzealous police, and heartless bureaucrats.[2]…

Constituting a people: the challenge of the Indian founding

Cheryl Saunders[1] A mark of a very good book is that it makes the reader think, think differently, and reflect on the application of the insights that it offers in other, broadly comparable, contexts. India’s Founding Moment, by Madhav Khosla, had this effect on me. I recommend it to anyone with an interest in India,…

Sadomasochistic judging

David Schraub[1] What makes a judicial decision legitimate? Common answers include fidelity to legal texts and precedent, coherence to natural or intersubjectively agreed upon norms, or endorsement from democratically accountable actors. But while these criteria each have strong theoretical appeal, their practical usefulness as a means of validating any contested judicial decision is often limited.…