Tuesday, July 17, 2018

Sherry on Lawson and Seidman on the Constitution as a Fiduciary Instrument

Suzanna Sherry, Vanderbilt University Law School, has posted The Imaginary Constitution, which is her contribution to a symposium on "A Great Power of Attorney": Understanding the Fiduciary Constitution (University Press of Kansas, 2017), by Gary Lawson and Guy Seidman that is forthcoming in volume 17 of the Georgetown Journal of Law & Public Policy:
How many ways can conservatives spin an originalist tale to support their deregulatory, small-government vision? The answer is apparently infinite. 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.