Volume 17

The Elephant Problem

by Richard Primus

In their new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertar-ian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central arguments. As a historical matter, there is virtually no evidence that the Founders thought of the Constitution on the model of a power of attorney. The book’s claim is about original meaning, so that ought to be the end of the matter. But to go on: the metaphor of the Constitution as a power of attorney nicely highlights the princi-ple that governmental officials should act in the public interest rather than for their own personal benefit. But it’s only a metaphor. The idea that the Constitution should be interpreted with the tools that would be used to interpret a power of attorney does not follow, and without that interpretive consequence the metaphor has no resolving power in contested cases.

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