Due Process and Agency: Compliments, Not Substitutes
Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care
In 1816, in answer to an inquiry from a lawyer, former president Thomas Jefferson wrote that the political writings of Aristotle, valuable as they may be in general, were “almost useless” for understanding practical political life under the U.S. Constitution. That was because while the ancient Greeks “had just ideas of the value of personal liberty,” they had not devised the mechanism of representation. Jefferson’s words are a useful reminder that our Constitution comprises elements devised over time through a process of abstract theory and historical experience. The Constitution itself establishes a multilayered system of protections in which federal branches not only check each other, but are also balanced against state-level institutions. In other words, the constitutional system has multiple layers, each of which involve legal protections for the citizenry. This is an important point to keep in mind when considering the duties and legal constraints on public officials such as discussed by Professors Gary Lawson and Guy Seidman in their article, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care. They are obviously correct that executive, legislative, and judicial officials are agents exercising powers delegated to them by the people in the Constitution. The founders took this for granted; they understood that the people are sovereign, and that government officials exercise power only as their agents.