Suzanna Sherry (Vanderbilt University – Law School) has posted The Imaginary Constitution (Georgetown Journal of Law & Public Policy, Vol. 17, forthcoming) on SSRN. Here is the abstract:
How many ways can conservatives spin an originalist tale to support their deregulatory, small-government vision? The answer is apparently infinite. [Ed.: No overstatements in this review!!] In a new book, Gary Lawson and Guy Seidman are the latest in a long line of scholars who insist that the real original meaning of the Constitution demands unwinding the regulatory state and substantially limiting the power of the federal government. They argue that the Constitution is a fiduciary instrument, specifically a power of attorney. After summarizing the book, this essay turns to three of its most important failings, each of which serves to make the book a work of politics, not history. In the end, their account is imaginative but their Constitution is imaginary.
The book is Gary Lawson & Guy Seidman, A Great Power of Attorney: Understanding the Fiduciary Constitution (Univ. of Kansas Press 2017). Here is the book description from Amazon:
What kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. Legal scholars Gary Lawson and Guy Seidman propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document—or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.” What follows from this particular conception of the Constitution—and is of greater importance—is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government.
In mapping out what these imperatives might mean—such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitution's beneficiaries—Lawson and Seidman offer a clearer picture of the original design for a limited government.
And comments from some people who liked it better than Professor Sherry did:
"This book makes an important intervention into discussions about fiduciary political theory's purchase on questions of American constitutional and administrative law. I have no doubt it will be widely debated–and that it will even win over many scholars who have not yet fully appreciated the fiduciary roots of American constitutional government. Although some of Lawson and Seidman's conclusions are not ones all fiduciary political theorists must endorse or adopt, others are so elegant and incisive that they cast fresh light on subjects like the non-delegation doctrine that others have left for dead."– Ethan J. Leib, Professor of Law, Fordham Law School
"A Great Power of Attorney is the best book written about judicial interpretation of the Constitution in my lifetime! It is must reading for anyone interested in American constitutional law or judicial review."– Steven G. Calabresi, the Clayton J. and Henry R. Barber Professor of Law, Northwestern University
Posted at 6:30 AM