Sotirios A. Barber
Are Professors Lawson and Seidman Serious About A “Fiduciary Constitution”?
Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care
In By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care, Professors Gary Lawson and Guy I. Seidman elaborate part of their argument for a “fiduciary Constitution” that they put forward in their recent book for the University Press of Kansas. In this book, Professors Lawson and Seidman argue that the U.S. Constitution is best seen as a delegation of governmental powers to agents of the American people (i.e., the national government) to serve the interests of the American people. The book argues that power that is delegated by principals and accepted by agents imposes duties on the agents, duties that include loyalty to the principals and care for their well-being. To support this general theory of the Constitution, Professors Lawson and Seidman need have looked no further than the Declaration of Independence (second paragraph), the Constitution’s preamble, and Federalist No. 1. Though they cite the Constitution’s preamble and other agency tracts, like Locke’s Second Treatise, Professors Lawson and Seidman rely mostly on the 18th Century common law of agency. They cite numerous cases in this body of law and presume both its knowledge by, and its influence on, the general public of the founding era and the Committee of Detail of the Federal Convention of 1787. All of this raises a question: why the arcana of 18th Century private law for a proposition easily affirmed by the foundational documents of the American system?