Is The Constitution A Ability Of Attorney? A Commentary On Lawson Too Seidman

In Apr 2018, the Georgetown Center for the Constitution awarded its source Thomas M. Cooley Book Prize of $50,000 to Professors Gary Lawson in addition to Guy Seidman for their book, ‘A Great Power of Attorney’: Understanding the Fiduciary Constitution (Kansas University Press, 2017).  To celebrate the mass in addition to its authors, the Center held a symposium at Georgetown that featured critical responses to A Great Power of Attorney yesteryear Ethan Leib in addition to Jed Shugerman, Richard Primus, Suzanna Sherry, in addition to myself.  The collected papers, together amongst a answer from Lawson in addition to Seidman, volition hold upward published inwards The Georgetown Journal of Law & Public Policy.

My contribution to the symposium is straightaway posted to SSRN.  It consists of a detailed refutation of the primary originalist thesis of A Great Power of Attorney, along amongst the conditional defence of a competing claim Lawson in addition to Seidman reject: that the Constitution is best understood equally a corporate charter.

I refer to this defence equally “conditional” because it is meant to hold upward an respond to an if-then question.  If i seeks to kind out the Constitution inwards price of familiar eighteenth-century legal categories – for example, equally a contract, trust, ability of attorney, or corporate charter – so which category seems most appropriate?  My respond is that the Constitution is most appropriately characterized, non equally a ability of attorney, but equally a corporate charter.

Of course, i mightiness reasonably wonder whether this enterprise of characterizing the Constitution inwards price of other legal categories is misguided.  The Constitution is what it is, subsequently all, non another thing.  In my commentary, I create non consider this wholesale rejection of Lawson in addition to Seidman’s projection of categorizing the Constitution.  Instead, I engage amongst their projection on its ain price in addition to debate that the Constitution is meliorate understood equally a corporate charter than equally a ability of attorney.

What turns on this disagreement?  Principally, the extent of authorities power.  As Suzanna Sherry observes inwards her contribution to the symposium, i primary impetus of A Great Power of Attorney appears to hold upward defending a narrow theory of authorities ability on originalist grounds.  Equating the Constitution amongst a ability of attorney lends itself to this deregulatory, small-government vision.  By contrast, characterizing the Constitution equally a corporate charter supports a to a greater extent than robust understanding of authorities power, for at to the lowest degree 2 reasons.  First, equally Lawson in addition to Seidman explain, corporate charters are supposed to have the most favorable possible interpretation to effectuate their purposes.  Second, the corporate charter innovation of the Constitution implies that the Government of the the States is vested amongst the ability to fulfill every role for which that authorities was formed, including the half-dozen bang-up objects enumerated inwards the Preamble.  This was the progressive vision of the Constitution advanced Franklin D. Roosevelt, who maintained that the national authorities had the ability to promote the full general welfare.  It also was the constitutional theory embraced yesteryear Benjamin Franklin when, inwards his concluding world act, he petitioned Congress to abolish slavery.  As Jonathan Gienapp, Richard Primus, in addition to David Schwartz have got late shown, like appeals to implied powers, grounded inwards the Preamble in addition to Necessary in addition to Proper Clause, were used throughout the founding era, peculiarly inwards connective amongst the Bank of the United States.  Yet this progressive vision of the Constitution is hardly congenial to Lawson in addition to Seidman, who have got labored diligently for many years to defend a much narrower innovation of authorities power.

In improver to considering these broader implications of Lawson in addition to Seidman’s project, my commentary argues that: (1) the primary thesis of A Great Power of Attorney rests on a sparse in addition to unpersuasive evidentiary base; (2) an exam of powers of attorney genuinely used yesteryear v influential founders—James Wilson, Gouverneur Morris, Alexander Hamilton, John Marshall, in addition to George Washington—reveals that the authors’ centre claim that “the Constitution resembles a ability of attorney” is unconvincing; (3) on at to the lowest degree 10 occasions, founders such equally Wilson, Marshall, Roger Sherman, Fisher Ames, Alexander Hamilton, in addition to others referred to the the States of America equally a legal corporation, characterized the Constitution equally a corporate charter, or made other remarks of a like character; (4) a unopen await at the drafting history of the Constitution inwards the Committee of Detail confirms that Wilson, inwards particular, considered the human activeness of naming the corporate entity rechartered yesteryear the Constitution —the the States of America—to hold upward of bang-up significance, inwards trouble amongst Blackstone’s observation that every corporation must hold upward given a name, yesteryear which lonely it tin perform legal acts; in addition to (5) Lawson in addition to Seidman are simply false when they claim that all eighteenth century rechartering instruments explicitly referred to the previous, superseded charter.  In fact, several founding-era nation constitutions, including the 1784 New Hampshire Constitution, the 1790 Pennsylvania Constitution, in addition to the 1793 Vermont Constitution, replaced before constitutions without explicitly referring to them.

Turning to the Necessary in addition to Proper Clause, my commentary argues that Lawson in addition to Seidman’s characterization of this clause equally a narrow “incidental powers” clause is misconceived for at to the lowest degree 3 reasons.  First, Lawson in addition to Seidman focus their attending well-nigh exclusively on the source one-half of the clause (the “foregoing powers” provision) in addition to mostly ignore the instant one-half (the “all other powers” provision).  Second, when they create engage amongst the “all other powers” provision, the results are weak in addition to implausible.  For example, Lawson in addition to Seidman keep that the “Department[s] or Officer[s]” to which this provision refers are created yesteryear Congress; that “the Government of the United States” to which the provision refers is not, inwards fact, that authorities equally a whole, but exactly “joint actors or unmarried houses of Congress;” in addition to that the Constitution never vests powers inwards the Government of the the States equally “a unitary, corporate entity.”  Lawson in addition to Seidman’s theory of the so-called “Sweeping Clause” thence treats an entire provision of the Constitution, which refers on its expression upward to “all other powers vested yesteryear this Constitution inwards the Government of the United States,” equally if it either does non be or does non hateful what it says.  Their theory also is at variance amongst the fact--which Lawson in addition to Seidman straightaway concede--that the the States undoubtedly does possess implied corporate powers, such equally the v powers Blackstone explains in his Commentaries are “tacitly annexed” in addition to “inseparably incident” to every legal corporation.  Finally, Lawson in addition to Seidman’s claim that “necessary in addition to proper” was a specialized phrase at the founding referring to the incidental powers doctrine also cannot hold upward squared amongst the historical record.

For an elaboration in addition to defence of all these claims, run across here.  For the symposium papers yesteryear Professors Leib & Shugerman, Primus, in addition to Sherry, run across here, here, in addition to here.