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02/29/2020

Samuel Bray & Paul Miller: Against Fiduciary Constitutionalism
Michael Ramsey

Samuel L. Bray (Notre Dame Law School) and Paul B. Miller (Notre Dame Law School) have posted Against Fiduciary Constitutionalism (52 pages) on SSRN.  Here is the abstract: 

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—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, and about the relationship of fiduciary status to good faith. Still other failings sound in constitutional law—linguistic confusions and an impossible attempt to locate the genre of the Constitution in the categories of private fiduciary law. These criticisms suggest fundamental weaknesses in the new and increasingly influential attempt to develop fiduciary constitutionalism.

Three of the leading targets (whose views vary quite a bit among themselves) are Gary Lawson and Guy Seidman's book "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 Georgetown L.J. 1 (2018); and Andrew Kent, Ethan J. Leib, & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev . 2111 (2019).  So this is an ambitious and wide-ranging debate.