Against Fiduciary Constitutionalism

*Bray is a Professor of Law, Notre Dame Law School. Miller is the Professor of Law, Associate Dean for International and Graduate Programs, and Director of the Notre Dame Program on Private Law, Notre Dame Law School. The authors are grateful for comments from Randy Barnett, Evan Bernick, Nathan Chapman, Evan Criddle, Evan Fox-Decent, Joshua Getzler, Andrew Gold, Albert Horsting, Andrew Kent, Sung Hui Kim, Gary Lawson, Ethan Leib, Ben McFarlane, Michael McConnell, David Pozen, Richard Primus, Richard Re, Lionel Smith, and Larry Solum, as well as attendees at the Third Annual International Fiduciary Law Conference held at Trinity College, Cambridge.Show More

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States.

This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law, such as mistakes about how to identify fiduciary relationships and about the content and enforcement of fiduciary duties. Still other failings sound in constitutional law, including the attempt to locate the genre of the Constitution in the categories of private fiduciary law. These criticisms suggest weaknesses in the new and increasingly influential attempt to develop fiduciary constitutionalism.

Introduction

Recently, a number of scholars have argued that the U.S. Constitution resembles a fiduciary document, and that it imposes fiduciary duties on various actors, including the President of the United States.¹ 1.See, e.g., Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (2017); Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 18 (2018); Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111 (2019); Ethan J. Leib & Stephen R. Galoob, Fiduciary Principles and Public Offices, in The Oxford Handbook of Fiduciary Law 303 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019); Ethan J. Leib & Andrew Kent, Fiduciary Law and the Law of Public Office: Suggestions for a Research Agenda, Wm. & Mary L. Rev. (forthcoming 2021) (on file with authors); Ethan J. Leib & Jed Handelsman Shugerman, Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation, 17 Geo. J.L. & Pub. Pol’y 463 (2019); Ethan J. Leib, David L. Ponet & Michael Serota, A Fiduciary Theory of Judging, 101 Calif. L. Rev. 699 (2013); Robert G. Natelson, The Constitution and the Public Trust, 52 Buff. L. Rev. 1077, 1140 (2004) [hereinafter Natelson, The Constitution and the Public Trust].Show More When Barack Obama was President, some found in the “fiduciary Constitution”² 2.Different scholars writing about what we call the “fiduciary Constitution” might have their own nomenclature. Our choice of terms, however, is not original and is not meant to be pejorative. See Lawson & Seidman, supra note 1 (title); Kent et al., supra note 1, at 2182; Leib & Shugerman, supra note 1 (title); id. at 464.Show More a means by which a court could hold unconstitutional the signature achievement of his administration, the Affordable Care Act.³ 3.E.g., Lawson & Seidman, supra note 1, at 91–98.Show More Now others find in fiduciary constitutionalism a means by which a court could find the present incumbent to have violated a proscription on self-dealing.⁴ 4.See Leib & Shugerman, supra note 1, at 468–69, 475.Show More The fiduciary Constitution contains multitudes—everything from a handy way for an originalist to justify Bolling v. Sharpe⁵ 5.See Lawson & Seidman, supra note 1, at 151–53, 170–71.Show More to a way for skeptics of the non-delegation doctrine to rein it in.⁶ 6.See Leib & Shugerman, supra note 1, at 479–85.Show More The convenience and malleability of this new constitutional argument should make us wary.

This Article offers a critique of fiduciary constitutionalism, finding it bad fiduciary law and bad constitutional law. We are not the first to criticize fiduciary constitutionalism, and our work therefore builds on that of others, especially Seth Davis and Richard Primus.⁷ 7.See generally Seth Davis, The False Promise of Fiduciary Government, 89 Notre Dame L. Rev. 1145 (2014) (analyzing differences between private fiduciaries and public officials and critiquing the lack of authority for fiduciary constitutionalism); Richard Primus, The Elephant Problem, 17 Geo. J.L. & Pub. Pol’y 373 (2019) (critically reviewing the evidence and methodology in Lawson & Seidman, supra note 1). Others have also criticized the over-extension of fiduciary concepts, albeit in different contexts. E.g., Lina M. Khan & David E. Pozen, A Skeptical View of Information Fiduciaries, 133 Harv. L. Rev. 497 (2019).Show More

It is important at the outset to note that the burgeoning literature in favor of a fiduciary reading of the Constitution means that different scholars make different claims. Some analogize the Constitution to a trust,⁸ 8.See Leib & Shugerman, supra note 1, at 477–79.Show More some to an agency relationship,⁹ 9.Lawson & Seidman, supra note 1, at 112.Show More some to a power of attorney,¹⁰ 10.Id. at 75 (referring to James Iredell’s quote regarding power of attorney).Show More and some to an attractively all-purpose generic “fiduciary” construct.¹¹ 11.Barnett & Bernick, supra note 1, at 18–21; see also id. at 19 nn.81 & 83 (discussing common fiduciary relationships and duties); cf. Lawson & Seidman, supra note 1, at 76 (“[W]e think it close to obvious that the Constitution, as a legal document, is best understood as some kind of agency or fiduciary instrument, whereas the case for viewing it specifically as (or as like) a power of attorney is more attenuated.”); Leib et al., supra note 1, at 708, 712–13 (recognizing differences among different kinds of fiduciaries, as well as differences between public and private law, but relying on a general “fiduciary principle”).Show More Some draw a straight line between a fiduciary law of the eighteenth century and the present.¹² 12.See, e.g., Barnett & Bernick, supra note 1, at 19–21.Show More Others admit there are differences between past and present, and thus offer a bevy of qualifications and hedges¹³ 13.E.g., Lawson & Seidman, supra note 1, at 6 (“[W]e are making no claims about the extent to which the meaning we uncover should or must contribute to legal decision making.”); id. at 11 (“Again, we frame these interpretative conclusions in hypothetical form: to the extent that the Constitution can be seen as a fiduciary instrument, or in some cases as a fiduciary instrument of a particular kind, certain conclusions about the document’s meaning follow from that identification.”). The hedges and qualifications are more pronounced—and thus the conclusions more circumspect—in the article by Kent, Leib, and Shugerman than in some of the other literature. See, e.g., Kent et al., supra note 1, at 2190 (“We do not opine here on the way the framers envisioned enforcing the President’s duty of loyalty and avoiding self-dealing.”).Show More—but those tend to fall away as soon as the scholars turn to spelling out the “enforceable duties” that they want to see the courts administering.¹⁴ 14.E.g., Lawson & Seidman, supra note 1, at 7 (“Now to our affirmative project: understanding the fiduciary character of the Constitution is important not simply as a historical matter but also for its contribution to constitutional interpretation.”); id. at 11; Leib & Shugerman, supra note 1, at 465 (“[T]his article delves further into this language’s [i.e. the Take Care Clause’s] likely meaning, indicating how it can establish enforceable duties for public officials.”); see also Kent et al., supra note 1, at 2119 (claiming “that the best historical understanding of the meaning of the Faithful Execution Clauses is that they impose duties that we today—and some in the eighteenth century as well—would call fiduciary”). Richard Primus and Suzanna Sherry note this oscillation in Lawson and Seidman’s argument. Primus, supra note 7, at 400, 402–04; Suzanna Sherry, The Imaginary Constitution, 17 Geo. J.L. & Pub. Pol’y 441, 447–49 (2019) (reviewing Lawson & Seidman, supra note 1). For discussion of a similar tendency in Kent et al., supra note 1, see infra note 87.Show More Some of the literature starts out cautious and then gallops away; some of it gallops from the start. But it all tends to be ambitious and thoroughly presentist.

This Article offers three main critiques of fiduciary constitutionalism:

The first is about contemporary fiduciary law. The fiduciary constitutionalists pervasively treat concepts as “fiduciary” that are in fact not limited to fiduciary law and instead have much a broader application, such as good faith.¹⁵ 15.See infra Part II.Show More This matters because a point of connection between the Constitution and some area that can be characterized as fiduciary (e.g., trust, agency), as thin as it is, cannot sustain the fiduciary constitutionalist project if it is a point of connection with many areas of law.

The second is about historical anachronism. Some fiduciary constitutionalists rely on a “fiduciary law” of 1789 when there was in fact no such law.¹⁶ 16.E.g., Barnett & Bernick, supra note 1, at 20–21 (asserting that the Constitution’s “organization and language sounds in eighteenth-century fiduciary law”). More cautious on this point is Kent et al., supra note 1, at 2179–80 (“[W]hat the three meanings we can attribute to the [Faithful Execution] Clauses have in common is that they are all part of the basic ways the private law constrains fiduciary discretion and power.”).Show More There were quite specific legal regimes for trust, agency, bailment, and so on. Some of these were at law, and some were in equity. Their standards of liability were different; their remedies were different; they differed in respect to defenses and the availability of a jury.¹⁷ 17.Contra Lawson & Seidman, supra note 1, at 62 (“The fiduciary responsibilities of a trustee and an attorney do not differ in any way material to our project.”).Show More As other fiduciary constitutionalists concede, there was no pan-subject “fiduciary law” in 1789.¹⁸ 18.See, e.g., Kent et al., supra note 1, 2180–81 (describing the “crystalliz[ing]” of “the ‘private’ fiduciary law we would recognize today” as not occurring in America until late in the eighteenth century, and concluding that “a fiduciary law of ‘private’ offices was unlikely to have been plucked off-the-rack by the Philadelphia Convention drafters and applied to public offices”); id. at 2179 (“Our historical findings about the original meaning of the Faithful Execution Clauses align with core features of modern fiduciary law . . . . ”); Leib & Shugerman, supra note 1, at 468 (suggesting doubt about whether “private fiduciary law was itself fully formed at the time of the founding”).Show More This abstraction is fatal to fiduciary constitutionalism.

The third is about how some fiduciary constitutionalists evade the anachronism problem. They try to escape this problem by tying the Constitution not to a fictional eighteenth-century “fiduciary law” but rather to fiduciary law of the twenty-first century.¹⁹ 19.Leib & Shugerman, supra note 1, at 468–69 (“[Article II of the U.S. Constitution] uses the language of faith and care to signal to courts and to executive officials that the President was supposed to be held to the same kinds of fiduciary obligations to which corporate officers, trustees, and lawyers are routinely held today in the private sector.”).Show More That interpretive move is certainly available on some theories of constitutional interpretation—theories that would to a substantial degree integrate political morality and constitutional law, or theories that would allow the courts to legitimately turn what was originally a non-fiduciary Constitution into a fiduciary Constitution, creating and developing new fiduciary duties for government officers.²⁰ 20.But cf. Davis, supra note 7, at 1182–95 (discussing whether that is advisable).Show More But that is not the argument the fiduciary constitutionalists have made to date (though they are of course free to reshape their arguments going forward). Instead, the fiduciary constitutionalists have relied on text and structure as understood at the Founding.²¹ 21.See infra notes 161 and 164 and accompanying text. We do recognize that there is a spectrum of views about how much the interpretation of the constitutional text should be informed by the legal categories at the time of ratification (as part of context). The more one separates the text from its legal context, the more room there is to integrate constitutional law and political morality, and the less constraint there is from the original understanding (with the familiar virtues and vices of that interpretive equilibrium).Show More And that more-or-less originalist argument does not hold if the Constitution can only be understood as fiduciary in light of present-day fiduciary law.

One thing, however, does need to be said in favor of the fiduciary constitutionalists’ claims. It is true that there is a long history in political thought of the use of trust and agency metaphors for governance. This figurative language appears in Plato and Cicero, in Locke and Hume.²² 22.See infra Section I.A.Show More But this language offers moral guidance and political wisdom, not enforceable duties with remedies that can be awarded by courts. And mere metaphor is not the big game the fiduciary constitutionalists are pursuing. Against this long history of a figurative and legally thin understanding of public office as a trust, it becomes easier to recognize the fiduciary constitutionalist project for what it is: an earnest and literalistic misreading of the tradition and an insistence on taking figurative language that works across thousands of years of political theory and treating it as if it were an invocation of an inevitably more particular body of legal or equitable claims and remedies. There is no such body of claims and remedies that can support this move—not a fiduciary law of 1789 (once it is recognized as a fiction), and not present-day fiduciary law (once it is correctly described).

The remainder of this Article proceeds as follows. Part I analyzes the supposed antecedents of fiduciary constitutionalism—both the classical and early modern tradition in political theory and also more recent advances in fiduciary theory with which the fiduciary constitutionalists align themselves. Part II critiques the fiduciary law of fiduciary constitutionalism. Part III critiques the constitutional law of fiduciary constitutionalism. The idea that the Constitution ought to be understood as a fiduciary instrument is a well-meant and seemingly timely entrant into the constitutional discourse of the United States. But taken together, these critiques show that the historical, philosophical, and legal foundations of fiduciary constitutionalism are weak.

1. * Professor of Law, Notre Dame Law School. ↑
2. ** Professor of Law, Associate Dean for International and Graduate Programs, and Director of the Notre Dame Program on Private Law, Notre Dame Law School. The authors are grateful for comments from Randy Barnett, Evan Bernick, Nathan Chapman, Evan Criddle, Evan Fox-Decent, Joshua Getzler, Andrew Gold, Albert Horsting, Andrew Kent, Sung Hui Kim, Gary Lawson, Ethan Leib, Ben McFarlane, Michael McConnell, David Pozen, Richard Primus, Richard Re, Lionel Smith, and Larry Solum, as well as attendees at the Third Annual International Fiduciary Law Conference held at Trinity College, Cambridge. ↑
3. See, e.g., Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (2017); Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 18 (2018); Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111 (2019); Ethan J. Leib & Stephen R. Galoob, Fiduciary Principles and Public Offices, in The Oxford Handbook of Fiduciary Law 303 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019); Ethan J. Leib & Andrew Kent, Fiduciary Law and the Law of Public Office: Suggestions for a Research Agenda, Wm. & Mary L. Rev. (forthcoming 2021) (on file with authors); Ethan J. Leib & Jed Handelsman Shugerman, Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation, 17 Geo. J.L. & Pub. Pol’y 463 (2019); Ethan J. Leib, David L. Ponet & Michael Serota, A Fiduciary Theory of Judging, 101 Calif. L. Rev. 699 (2013); Robert G. Natelson, The Constitution and the Public Trust, 52 Buff. L. Rev. 1077, 1140 (2004) [hereinafter Natelson, The Constitution and the Public Trust]. ↑
4. Different scholars writing about what we call the “fiduciary Constitution” might have their own nomenclature. Our choice of terms, however, is not original and is not meant to be pejorative. See Lawson & Seidman, supra note 1 (title); Kent et al., supra note 1, at 2182; Leib & Shugerman, supra note 1 (title); id. at 464. ↑
5. E.g., Lawson & Seidman, supra note 1, at 91–98. ↑
6. See Leib & Shugerman, supra note 1, at 468–69, 475. ↑
7. See Lawson & Seidman, supra note 1, at 151–53, 170–71. ↑
8. See Leib & Shugerman, supra note 1, at 479–85. ↑
9. See generally Seth Davis, The False Promise of Fiduciary Government, 89 Notre Dame L. Rev. 1145 (2014) (analyzing differences between private fiduciaries and public officials and critiquing the lack of authority for fiduciary constitutionalism); Richard Primus, The Elephant Problem, 17 Geo. J.L. & Pub. Pol’y 373 (2019) (critically reviewing the evidence and methodology in Lawson & Seidman, supra note 1). Others have also criticized the over-extension of fiduciary concepts, albeit in different contexts. E.g., Lina M. Khan & David E. Pozen, A Skeptical View of Information Fiduciaries, 133 Harv. L. Rev. 497 (2019). ↑
10. See Leib & Shugerman, supra note 1, at 477–79. ↑
11. Lawson & Seidman, supra note 1, at 112. ↑
12. Id. at 75 (referring to James Iredell’s quote regarding power of attorney). ↑
13. Barnett & Bernick, supra note 1, at 18–21; see also id. at 19 nn.81 & 83 (discussing common fiduciary relationships and duties); cf. Lawson & Seidman, supra note 1, at 76 (“[W]e think it close to obvious that the Constitution, as a legal document, is best understood as some kind of agency or fiduciary instrument, whereas the case for viewing it specifically as (or as like) a power of attorney is more attenuated.”); Leib et al., supra note 1, at 708, 712–13 (recognizing differences among different kinds of fiduciaries, as well as differences between public and private law, but relying on a general “fiduciary principle”). ↑
14. See, e.g., Barnett & Bernick, supra note 1, at 19–21. ↑
15. E.g., Lawson & Seidman, supra note 1, at 6 (“[W]e are making no claims about the extent to which the meaning we uncover should or must contribute to legal decision making.”); id. at 11 (“Again, we frame these interpretative conclusions in hypothetical form: to the extent that the Constitution can be seen as a fiduciary instrument, or in some cases as a fiduciary instrument of a particular kind, certain conclusions about the document’s meaning follow from that identification.”). The hedges and qualifications are more pronounced—and thus the conclusions more circumspect—in the article by Kent, Leib, and Shugerman than in some of the other literature. See, e.g., Kent et al., supra note 1, at 2190 (“We do not opine here on the way the framers envisioned enforcing the President’s duty of loyalty and avoiding self-dealing.”). ↑
16. E.g., Lawson & Seidman, supra note 1, at 7 (“Now to our affirmative project: understanding the fiduciary character of the Constitution is important not simply as a historical matter but also for its contribution to constitutional interpretation.”); id. at 11; Leib & Shugerman, supra note 1, at 465 (“[T]his article delves further into this language’s [i.e. the Take Care Clause’s] likely meaning, indicating how it can establish enforceable duties for public officials.”); see also Kent et al., supra note 1, at 2119 (claiming “that the best historical understanding of the meaning of the Faithful Execution Clauses is that they impose duties that we today—and some in the eighteenth century as well—would call fiduciary”). Richard Primus and Suzanna Sherry note this oscillation in Lawson and Seidman’s argument. Primus, supra note 7, at 400, 402–04; Suzanna Sherry, The Imaginary Constitution, 17 Geo. J.L. & Pub. Pol’y 441, 447–49 (2019) (reviewing Lawson & Seidman, supra note 1). For discussion of a similar tendency in Kent et al., supra note 1, see infra note 87. ↑
17. See infra Part II. ↑
18. E.g., Barnett & Bernick, supra note 1, at 20–21 (asserting that the Constitution’s “organization and language sounds in eighteenth-century fiduciary law”). More cautious on this point is Kent et al., supra note 1, at 2179–80 (“[W]hat the three meanings we can attribute to the [Faithful Execution] Clauses have in common is that they are all part of the basic ways the private law constrains fiduciary discretion and power.”). ↑
19. Contra Lawson & Seidman, supra note 1, at 62 (“The fiduciary responsibilities of a trustee and an attorney do not differ in any way material to our project.”). ↑
20. See, e.g., Kent et al., supra note 1, 2180–81 (describing the “crystalliz[ing]” of “the ‘private’ fiduciary law we would recognize today” as not occurring in America until late in the eighteenth century, and concluding that “a fiduciary law of ‘private’ offices was unlikely to have been plucked off-the-rack by the Philadelphia Convention drafters and applied to public offices”); id. at 2179 (“Our historical findings about the original meaning of the Faithful Execution Clauses align with core features of modern fiduciary law . . . . ”); Leib & Shugerman, supra note 1, at 468 (suggesting doubt about whether “private fiduciary law was itself fully formed at the time of the founding”). ↑
21. Leib & Shugerman, supra note 1, at 468–69 (“[Article II of the U.S. Constitution] uses the language of faith and care to signal to courts and to executive officials that the President was supposed to be held to the same kinds of fiduciary obligations to which corporate officers, trustees, and lawyers are routinely held today in the private sector.”). ↑
22. But cf. Davis, supra note 7, at 1182–95 (discussing whether that is advisable). ↑
23. See infra notes 161 and 164 and accompanying text. We do recognize that there is a spectrum of views about how much the interpretation of the constitutional text should be informed by the legal categories at the time of ratification (as part of context). The more one separates the text from its legal context, the more room there is to integrate constitutional law and political morality, and the less constraint there is from the original understanding (with the familiar virtues and vices of that interpretive equilibrium). ↑
24. See infra Section I.A. ↑