The American originalist is resolutely uninterested in other countries, even those that are just as free and committed to the rule of law.
Gary Lawson and Guy Seidman’s important new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, seeks to explain what the Constitution of the United States is. While that might appear to be a goal that could only be achieved with a massive tome (or perhaps several of them), the book runs about 200 pages and is focused narrowly on the question of what kind of document “We the People” ratified in 1788.
The Constitution has been called a contract, a compact, a covenant, a charter, and (by one of the coauthors in a previous writing) a recipe—all of which terms have been used to advance ideas about how we should understand its meaning. Different kinds of documents are drafted in accordance with different conventions, and readers must be familiar with these if they are to grasp a given document’s meaning. It follows, then, that those interested in understanding the Constitution’s meaning should identify its character as a document.
As one might guess from the title, Lawson and Seidman find that the Constitution is a fiduciary document—a legal instrument, familiar in private law, that empowers one person (the fiduciary) to control or manage the assets or legal interests of another (the beneficiary or beneficiaries) in order to promote the latter’s interests. As private law imposes a stringent set of duties on fiduciaries to protect beneficiaries against abuses of discretion, so the Constitution imposes similar duties upon government officials who are empowered to act on behalf of “We the People.” When James Iredell described the Constitution as a “great power of attorney” at the North Carolina ratifying convention in 1788, he was offering not merely an attractive analogy but an interpretive key to the document that he hoped would become the law of the land.
The implications of Lawson and Seidman’s conclusion are profound. But let me start by summarizing their empirical evidence before tracing some of the implications their conclusion has for constitutional meaning.
Most of the book is taken up with organizing the evidence that the coauthors (together with Robert Natelson, their frequent collaborator) have been amassing for years and have set forth in numerous articles and one book focusing on the fiduciary roots of the Article I’s Necessary and Proper Clause. Lawson and Seidman begin by detailing the contours of fiduciary relationships and documents during the late 18th century. They then discuss how fiduciary principles were used by Americans to conceptualize the relationship between legitimate governments and their citizens. Then they move to the Constitution itself, specifying the ways in which its content and structure reveal its character as a fiduciary document. Lastly, they sketch how the various duties that attached to fiduciaries might be applicable to governmental actors under “this Constitution.”
Fiduciary relationships were a feature of everyday life during the Founding era. At a time when travel and communication were difficult, it was common for people to authorize others to act on their behalf for limited purposes—say, if one was unable to sell property or collect rent in person. Doing so meant using a particular legal instrument: a letter of attorney or power of attorney. These documents shared a common structure, including the designation of the identity of the granting party—the principal—together with a phrase indicating that another party—the agent—had been delegated power to act on behalf of the principal.
Lawson and Seidman write that these designations were in certain cases “preceded by a lengthy preambular explanation of the circumstances that led to the grant of authority and the purposes sought to be achieved by the instrument.” They find that two words that showed up in virtually all such letters were the words “constitute” and “ordain.” The letters went on to identify, or enumerate, the powers of the agent, and the means by which those powers could be carried into effect.
Of course, people do not have infinite time, cannot anticipate every contingency, and would not enter into fiduciary arrangements at all if they could not depend upon certain background rules of interpretation that could approximate their intentions when those intentions were not textually specified. The background rules had, by the late 18th century, been developed over the span of hundreds of years of common law. Certain textually unspecified incidental powers came to be associated with textually specified primary grants of authority, on the assumption that (for example) a landowner who delegated power to an agent to manage his lands intended his agent to be able to lease them. But that same landowner would likely not have intended his agent to be able to sell his lands. Had he so desired, he would have specifically delegated what was in substance a greater power.
The creation of a fiduciary relationship in the late 18th century also triggered a set of legal duties and responsibilities that are best understood, not as efforts to approximate the intent of principals, but as efforts to protect principals against abuses of the discretion enjoyed by their agents. Just as incidental powers followed from the granting of primary powers to agents, so too did agents’ duties.
Agents had a duty to follow instructions and remain within their delegated authority; to represent beneficiaries in good faith, that is, honestly; to exercise reasonable care and diligence; to personally exercise delegated power, rather than sub-delegating that power to a third party; and to treat members of the same class of beneficiaries impartially. All of these follow from the nature of the fiduciary relationship, not from any specific itemization in the document that created that relationship. Principals without knowledge of the intricacies of these background rules did not need to detail them in order to be protected by them.
The American Constitution is obviously not a private agreement; it is a governing document. In view of the intellectual context in which the Constitution was drafted and ratified, however, it would be surprising if the Constitution had not been informed by fiduciary principles. Founding-era writings on government are filled with references to classical authors like Cicero, who argued that government “must be conducted for the benefit of those entrusted to one’s care”; anti-monarchical polemicists like John Milton, who averred that “the power of kings and magistrates . . . is originally the people’s, and by them conferred in trust only to be employed to the common peace and benefit”; pamphleteers like John Trenchard and Thomas Gordon, who described government as a “trust”; and political theorists like the Baron de Montesquieu and John Locke, whose writings are saturated with expressions of a fiduciary theory of government.
References to government officials as agents permeate Founding-era literature and public discourse. Several state constitutions used the fiduciary terms “trust” or “public trust” as synonyms for public office. The constitution of Maryland elaborated upon the concept of government-as-fiduciary, declaring that “all persons invested with the legislative or executive powers of government are the trustees of the public.” If 18th century Americans were not the first to bring fiduciary principles to bear upon the science of politics, they eagerly embraced the concept of government-as-fiduciary and it did much to structure their thinking about how legitimate governments should operate.
With the benefit of this context, we can see why and how the structure and content of the Constitution’s text discloses its character as a power of attorney. It begins with a preamble that states its purposes. It identifies the principal: “We the People.” It contains words of legal authorization: We the People “ordain and establish” it as “a Constitution for the United States of America.” It then delegates power to federal actors, as if to We the People’s agents—as one would expect in a power of attorney—and specifies the means by which the agents are to execute their tasks.
The body of the Constitution contains language that sounds in fiduciary law. To cite just a few examples:
- Congress is empowered to enact measures that are “necessary and proper” for carrying delegated powers into execution—a reference to the doctrine of incidental powers;
- The President is required to “take care that the laws be faithfully executed”—a reference to the duty of good faith; and
- Article VI provides that all government actors must take an oath to “support this Constitution”—thus imposing a duty to follow instructions.
In several places, the Constitution even refers to “public Trust” and to offices “of Trust.” The document, Lawson and Seidman write, “looks, acts, functions—and for lack of a better term, feels—much like a power of attorney (albeit an unusually grand one)—probably as much so as the nature of the instrument and the institutions it is creating permits.”
If they are correct, what follows from that, as an interpretive matter? Here, as throughout, the authors make a modest claim: “[The] background rules pertaining to powers of attorney are a good place to start when seeking interpretive guidance concerning the Constitution.” Let us consider three Supreme Court decisions that the authors use to illustrate the power of fiduciary theory as an interpretive tool.
It is to be doubted that any of the Supreme Court’s constitutional decisions relies more upon fiduciary theory than McCulloch v. Maryland. In McCulloch, decided in 1819, the Court held that the creation of a federal banking corporation was a “necessary and proper” means for carrying Congress’ enumerated powers to tax, borrow, regulate commerce, and maintain a military into execution.
Chief Justice John Marshall’s opinion for the Court cast the power to incorporate a bank as “incidental to other powers” rather than “a great substantive and independent power.” Marshall’s reasoning implied that if the power to incorporate had been a “distinct and independent power,” it would not have been proper—such a distinct and independent power would have “found a place among the enumerated powers of government” if We the People had intended to delegate it to Congress.
Lawson and Seidman note that, in a subsequent defense of his opinion, Marshall “specifically affirmed, as a test of incidence than the enumerated powers it supported, the requirement that an incident be less ‘worthy’ than the enumerated power it supported.” This affirmation reflected Marshall’s understanding that the clause “incorporate[d] the doctrine of principals and incidents.” They might have added that Marshall’s analysis in McCulloch also presents Congress as bound by the duty to act in good faith—and judges as bound to assess whether Congress has acted consistently with that duty. Thus, Marshall wrote that
should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land.
Such examples of fiduciary reasoning by the Court are, however, few and far between. Lawson and Seidman lament that the Court seems to have all but entirely ceased to enforce the fiduciary duty to personally exercise delegated power—even as it has consistently affirmed that the Constitution imposes such a duty. The so-called “nondelegation doctrine,” according to which specialized branches of government vested with particular kinds of power are forbidden to sub-delegate that power elsewhere, has long since been pronounced dead—scholars have questioned whether it ever really lived for more than one year.
To illustrate just how far congressional delegation has gone, Lawson and Seidman discuss the 2015 case of Yates v. United States, which turned on whether red grouper that measured less than 20 inches were “tangible object[s]” within the meaning of the federal Sarbanes-Oxley Act of 2002. Captain John Yates was tried and convicted under the statute for throwing undersized grouper overboard and replacing them with larger fish in order to avoid a violation of fishing regulation—which actions were said to have run afoul of Sarbanes-Oxley’s prohibitions against “knowingly alter[ing], destroy[ing], mutilat[ing], conceal[ing], cover[ing] up, falsif[ying], or mak[ing] a false entry in any record, document, or tangible object, with the intent to impede, obstruct, or influence the investigation of any matter within the jurisdiction of any department or agency of the United States.”
Yates ultimately prevailed in the Supreme Court on the statutory question, but no one at the time focused on whether Congress could, consistent with the Constitution’s bar on sub-delegation, authorize the National Marine Fisheries Service (an executive agency) to issue the relevant grouper regulations. Lawson and Seidman point out that the statutory authority for them only sets forth “a rather vague set of standards to which any fishery management plan must conform,” directs the Secretary of Commerce to prepare fishery management plans, and then proclaims “[i]t is unlawful—(1) for any person—(A) to violate any provision of this chapter or any regulation or permit issued pursuant to this chapter.” That is to say, the congressional statute prohibits nothing until the executive agency decides to prohibit something. The breadth of discretion granted to the agency to define lawful and unlawful conduct is enormous.
Of course, no one focused on sub-delegation because the Court has for nearly a century roundly rejected such challenges to legislation. It instead demands only that an “intelligible principle” be discernible in a statute that confers regulatory authority upon federal agencies—and it always finds one, even when, as Lawson puts it, “less discerning readers find gibberish.” But if the Constitution is in fact a fiduciary instrument, it implicitly forbids sub-delegation—by Congress, by the executive, or by the judiciary. How one distinguishes the imprecision that naturally inheres in language from impermissible sub-delegation is not an easy question to answer. But fiduciary theory requires that some line must be drawn—and it offers a framework for conceptualizing how that line ought to be drawn.
Perhaps the most striking illustration of the potency of fiduciary theory is its application to one of the Court’s most troublesome decisions: Bolling v. Sharpe, decided in 1954. In Bolling, the Court held that the Fifth Amendment’s Due Process Clause prohibited segregated public schooling in the District of Columbia.
Chief Justice Earl Warren’s opinion in Bolling is, frankly, a muddled mess. As David Bernstein has documented, Warren’s initial draft opinion affirmed that the right to pursue an education was encompassed by the term “liberty” and that segregation in public schools constituted an arbitrary restraint upon that right—one that served no proper governmental end. Wrote Warren:
[A]s a government may not impose arbitrary restrictions on the parent’s right to educate his child, the government must not impose arbitrary restraints on access to the education which the government itself provides.
Warren here stood on firm precedential ground, for the Court had, in a string of prior cases involving the Fourteenth Amendment’s Due Process Clause, affirmed a liberty interest in educational freedom. But Warren was moved to defer to Justice Hugo Black, who took a dim view of “substantive due process,” and objected to any reference to education as an instance of “liberty.” The published opinion simply asserts that, although the Fifth Amendment does not contain an Equal Protection Clause as does the Fourteenth Amendment, “discrimination may be so unjustifiable as to be violative of due process.” Few doubt that Bolling, decided on the same day as Brown v. Board of Education, must be right—but Warren’s opinion does not offer a satisfactory account of why the Constitution forbids the federal government from segregating public schools.
Fiduciary theory makes Bolling an easy case. Although Congress has the power to exercise exclusive jurisdiction over the District of Columbia in “all cases whatsoever,” that power is implicitly limited by Congress’ status as a fiduciary. As a fiduciary, Congress is obliged to be impartial in pursuing its beneficiaries’ interests. Differential treatment of similarly situated beneficiaries must therefore be justified with reference to some reasonable cause that is connected with the welfare of all. Segregating public schools on the basis of race of obviously cannot be said to promote the welfare of black children. Thus, such segregation is unconstitutional, independent of the Fifth Amendment’s strictures.
To be sure, it could be argued (correctly, in my view), that the Fifth Amendment’s requirement of “due process of law” requires any legitimate deprivation of “life, liberty, or property” to take place pursuant to valid constitutional authority, and thus Bolling was correct to hold that segregation constituted a deprivation of due process of law. (As Bernstein noted, citizens were deprived of their “property” in the form of taxes in order to subsidize whites’ education more than blacks’.) But fiduciary theory provides the necessary contextual enrichment. Without it, it is difficult to see why Congress is forbidden to treat similarly situated people differently without reasonable cause.
Lawson and Seidman have made a persuasive case that one cannot understand the Constitution’s original meaning—whether one believes that that meaning is determined by the intentions of the Framers, the understanding of the ratifiers, or the understanding of a hypothetical competent and reasonable speaker of the English language at the time of enactment—without understanding its fiduciary character. Henceforth, those who believe that the document’s original meaning incorporates interpretive rules that its enactors would have expected to be applied will need to add to their tool kit the rules governing the interpretation of fiduciary documents.
While it is true that the authors steadfastly (and amusingly) refuse to “get normative”—to prescribe any “oughts” in view of their discovery of what the Constitution “is”—their discovery may impose an “ought” upon those who draw their power from the Constitution. If, as Christopher Green has argued, one who takes an oath to “support this Constitution” by that act pledges her fidelity to a historical document with communicative content that was fixed at the time of its enactment, the Constitution’s fiduciary nature entails that the oath-taker ought, if not to personally regard herself as a fiduciary, to approach any task with constitutional implications in a manner cognizant of the fact that the Constitution requires her to act like one. Even if she thinks that the concept of fiduciary government rests on implausible premises, she cannot disregard that concept if called upon to consider what the Constitution requires in any given context.
Those of us who make no such pledge, and whom the Constitution does not empower to do anything in particular, may have the luxury of going about our daily affairs indifferent to whether the Constitution is a fiduciary document. Not so, government officials. If the Constitution is a fiduciary instrument, then government officials ought to interpret it accordingly.
If Lawson and Seidman are perhaps overly modest about the implications of their discovery, they are emphatically correct that there is much work to be done. Considering the foregoing, we can identify several areas in which, even with the benefit of fiduciary theory, constitutional actors are unlikely to arrive at a single determinate answer about what the relevant constitutional text requires in a given context and will need to construct implementing doctrines to give that text legal effect.
The fiduciary duty to personally exercise delegated power is an obvious example. While Lawson and Seidman reject the “intelligible principle” doctrine as a fig leaf that the Supreme Court has sewn together to conceal the abdication of its own duty to police impermissible sub-delegation, they do not offer a useful alternative mechanism that constitutional actors can use to identify impermissible sub-delegation. To merely say that a task cannot be delegated by Congress if it is sufficiently important that Congress must do it—as Lawson and Seidman do—is not good enough for constitutional government work.
Perhaps fiduciary theory can help constitutional actors not only interpret the Constitution’s communicative content, but construct doctrine where interpretation fails—whether because of human fallibility, the scarcity of time and other resources, the inherent imprecision of language, or some combination of those constraints—to yield a determinate answer. Professor Randy Barnett and I have drawn upon the work of Lawson, Seidman, and Natelson to articulate a theory of good-faith constitutional construction that we plan to flesh out in a series of articles (and projected book.) As the term “good faith” suggests, our theory is informed by fiduciary theory.
We argue that constitutional actors have a duty to follow their constitutional instructions in good faith, and to forebear from exercising their discretion under the Constitution’s letter (its text, consisting in its original public meaning) to undercut its original spirit (understood as the function or functions that a hypothetical member of the public would have reasonably understood particular provisions to serve). When constitutional actors cannot arrive at a determinate answer through interpretation, we argue that they should turn to the spirit of the relevant text to construct a rule that resolves the question at hand. I do not mean to suggest that Lawson, Seidman, or Natelson would agree with our approach—only to indicate the possibility that fiduciary theory could guide construction as well as inform interpretation.
The authors of “A Great Power of Attorney” are at pains, as I said, to disclaim any intention but that of shedding some light upon the meaning of an old document. What they have done is demonstrate to the satisfaction of this reviewer that it would be careless indeed for anyone who thinks and writes seriously about the Constitution’s meaning to neglect its character as a fiduciary instrument that creates a fiduciary government. That is a great achievement in and of itself.
 See, for example, Robert G. Natelson, “The Government as Fiduciary: A Practical Demonstration from the Reign of Trajan,” University of Richmond Law Review 35 (2001), 191, 193; Robert G. Natelson, “The Constitution and the Public Trust,” Buffalo Law Review 52 (2004), 1077; Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010), pp. 68-70; Gary Lawson et. al., “The Fiduciary Foundations of Federal Equal Protection,” Boston University Law Review 94 (2014), 415; and Gary Lawson and Guy I. Seidman, “By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care,” Boston University School of Law, Public Law Research Paper No. 16-29, 2016, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2822330.
 See Eric A. Posner and Adrian Vermeule,“Interring the Nondelegation Doctrine,” University of Chicago Law Review 69 (2002), 1725, 1729.
 David E. Bernstein, “Bolling, Equal Protection, Due Process, and Lochnerphobia,” Georgetown Law Journal 93 (2005), 1253.
 Christopher Green, “ ‘This Constitution’: Constitutional Indexicals as a Basis for Textualist Semi-Originalism,” Notre Dame Law Review 84 (2008), 1607.
 See Randy E. Barnett and Evan Bernick, “The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction,” Georgetown Law Faculty Publications and Other Works, available at http://scholarship.law.georgetown.edu/facpub/1946.
 Lawson, for his part, has in the past proclaimed the Constitution a “no construction zone.” Gary Lawson, “Dead Document Walking,” Boston University Law Review 92 (2012).