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Andrew Hyman on "The Fiduciary Foundations of Federal Equal Protection"
Michael Ramsey

Andrew Hyman comments:

Gary Lawson, Guy Seidman, and Robert Natelson have written an interesting manuscript [The Fiduciary Foundations of Federal Equal Protection] that focuses on the case of Bolling v. Sharpe, and why they believe that decision was justified.  They ground Bolling in a general fiduciary duty of the federal government to treat people equally.  These scholars are extremely competent and talented, so I disagree with some hesitation.

First of all, I have no problem agreeing with their general notion that Bolling v. Sharpe was correctly decided.  As Michael McConnell has written, Congress never “required that the schools of the District of Columbia be segregated.”   Judge McConnell has ably explained that when the federal government diminishes fundamental liberty, such as the liberty to attend the same schools as white people, then the people thus deprived of their liberty are entitled to a vote about it by Congress, rather than merely an obscure decision by faceless bureaucrats or provincial local officials.  That is perhaps the most fundamental procedural aspect of the Due Process Clause.  The rationale explained by Judge McConnell should, I would think, merit at least a footnote in an article seeking to explain why Bolling was correctly decided as an original matter.

The authors of the present manuscript purport to be justifying that court decision: “Bolling was correctly decided—and quite easily correctly decided—as a matter of original meaning. “  But then they say almost the exact opposite: “We conclude only that the Constitution’s meaning includes fiduciary obligations on federal officials; we do not say whether courts can or should enforce those obligations in any particular fashion.”  I hope they gravitate toward the latter position.  Hamilton said in the Federalist that courts could only strike down statutes given an irreconcilable variance with the Constitution, and I think these broad fiduciary principles would have had to be mentioned somewhere in the text to serve that purpose.  They may well exist (like the Preamble) as guides that are not judicially enforceable.

This issue is especially troubling because the fiduciary rationale discussed by these authors is not limited to equality principles.  They say that fiduciaries are duty-bound to “exercise reasonable care, remain loyal to the public interest, [and] exercise their power in a reasonably impartial fashion….”  Only the last of those three duties involves equality.  And these principles are vastly more broad than the sort of housekeeping details that courts typically infer from the Constitution, broader even than anything in the Bill of Rights.  Those fiduciary principles may be okay for general judicial purposes pursuant to the Constitution. but not necessarily as a basis for judicial review.

A court that can decide the political branches are not exercising “reasonable care” or acting in the "public interest" is a court that can run the country.  I am also skeptical that these fiduciary principles, as a basis for judicial review, included a blanket exception regarding slavery, given that the Constitution's pro-slavery provisions are very limited; those exceptions did not, for example, require slavery in the southern federal territories as provided by the Missouri Compromise.

The manuscript's authors could have also considered whether the omission of an explicit equality principle from the original Constitution and Bill of Rights was accidental, or instead was intentional so that Congress rather than the judiciary would have the responsibility to develop and implement notions of equality.  When he introduced the Bill of Rights in Congress, James Madison noted that some state bills of rights “state the perfect equality of mankind.  This, to be sure, is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a Constitution.”  So the omission seems to have been very deliberate.  This was not omitted, though: “The Congress shall have power…To exercise exclusive Legislation in all Cases whatsoever, over such District….” 

Courts and politicians often disagree about what constitutes impartiality, reasonable care, and the public interest --- which seems like a good reason to keep ordinary citizens (i.e. the governed) in the loop, as a check on their governmental fiduciaries.  The best way to remove that oversight of fiduciaries is to allow unaccountable judges instead of accountable legislators to monopolize critical decisions about reasonableness, impartiality, and the public interest.