John Mikhail (Georgetown University Law Center) has posted Is the Constitution a Power of Attorney or a Corporate Charter? A Commentary on ''A Great Power of Attorney': Understanding the Fiduciary Constitution' by Gary Lawson and Guy Seidman (Georgetown Journal of Law & Public Policy, forthcoming) (34 pages) on SSRN. Here is the abstract:
In their stimulating book, "'A Great Power of Attorney': Understanding the Fiduciary Constitution," Professors Gary Lawson and Guy Seidman argue that: (1) the Constitution of the United States is a power of attorney, or at least usefully analogized to a power of attorney; (2) although the United States of America is a legal corporation, the Constitution of the United States is not a corporate charter; and (3) the Necessary and Proper Clause is best understood as a narrow incidental powers clause. In this commentary, I dispute all three claims and explain why I believe Lawson and Seidman are mistaken about them.
Via Balkinization, where Professor Mikhail has further comments that begin:
In April 2018, the Georgetown Center for the Constitution awarded its first Thomas M. Cooley Book Prize of $50,000 to Professors Gary Lawson and Guy Seidman for their book, ‘A Great Power of Attorney’: Understanding the Fiduciary Constitution (Kansas University Press, 2017). To celebrate the book and its authors, the Center held a symposium at Georgetown that featured critical responses to A Great Power of Attorney by Ethan Leib and Jed Shugerman, Richard Primus, Suzanna Sherry, and myself. The collected papers, together with a reply from Lawson and Seidman, will be published in The Georgetown Journal of Law & Public Policy.
My contribution … consists of a detailed refutation of the main originalist thesis of A Great Power of Attorney, along with the conditional defense of a competing claim Lawson and Seidman reject: that the Constitution is best understood as a corporate charter.
And from further along:
What turns on this disagreement? Principally, the extent of government power. As Suzanna Sherry observes in her contribution to the symposium, one main impetus of A Great Power of Attorney appears to be defending a narrow theory of government power on originalist grounds. Equating the Constitution with a power of attorney lends itself to this deregulatory, small-government vision. By contrast, characterizing the Constitution as a corporate charter supports a more robust understanding of government power, for at least two reasons. First, as Lawson and Seidman explain, corporate charters are supposed to receive the most favorable possible interpretation to effectuate their purposes. Second, the corporate charter conception of the Constitution implies that the Government of the United States is vested with the power to fulfill every purpose for which that government was formed, including the six great objects enumerated in the Preamble. This was the progressive vision of the Constitution advanced Franklin D. Roosevelt, who maintained that the national government had the power to promote the general welfare. It also was the constitutional theory embraced by Benjamin Franklin when, in his last public act, he petitioned Congress to abolish slavery. As Jonathan Gienapp, Richard Primus, and David Schwartz have recently shown, similar appeals to implied powers, grounded in the Preamble and Necessary and Proper Clause, were used throughout the founding era, particularly in connection with the Bank of the United States. Yet this progressive vision of the Constitution is hardly congenial to Lawson and Seidman, who have labored diligently for many years to defend a much narrower conception of government power.
Posted at 6:13 AM