Saturday, September 14, 2019

Is the Constitution a Power of Attorney? A Commentary on Lawson and Seidman

John Mikhail

In April 2018, the Georgetown Center for the Constitution awarded its first Thomas M. Cooley Book Prize of $50,000 to Professors Gary Lawson and Guy Seidman for their book, ‘A Great Power of Attorney’: Understanding the Fiduciary Constitution (Kansas University Press, 2017).  To celebrate the book and its authors, the Center held a symposium at Georgetown that featured critical responses to A Great Power of Attorney by Ethan Leib and Jed Shugerman, Richard Primus, Suzanna Sherry, and myself.  The collected papers, together with a reply from Lawson and Seidman, will be published in The Georgetown Journal of Law & Public Policy.

My contribution to the symposium is now posted to SSRN.  It consists of a detailed refutation of the main originalist thesis of A Great Power of Attorney, along with the conditional defense of a competing claim Lawson and Seidman reject: that the Constitution is best understood as a corporate charter.

I refer to this defense as “conditional” because it is meant to be an answer to an if-then question.  If one seeks to classify the Constitution in terms of familiar eighteenth-century legal categories – for example, as a contract, trust, power of attorney, or corporate charter – then which category seems most appropriate?  My answer is that the Constitution is most appropriately characterized, not as a power of attorney, but as a corporate charter.

Of course, one might reasonably wonder whether this enterprise of characterizing the Constitution in terms of other legal categories is misguided.  The Constitution is what it is, after all, not some other thing.  In my commentary, I do not consider this wholesale rejection of Lawson and Seidman’s project of categorizing the Constitution.  Instead, I engage with their project on its own terms and argue that the Constitution is better understood as a corporate charter than as a power of attorney.

What turns on this disagreement?  Principally, the extent of government power.  As Suzanna Sherry observes in her contribution to the symposium, one main impetus of A Great Power of Attorney appears to be defending a narrow theory of government power on originalist grounds.  Equating the Constitution with a power of attorney lends itself to this deregulatory, small-government vision.  By contrast, characterizing the Constitution as a corporate charter supports a more robust understanding of government power, for at least two reasons.  First, as Lawson and Seidman explain, corporate charters are supposed to receive the most favorable possible interpretation to effectuate their purposes.  Second, the corporate charter conception of the Constitution implies that the Government of the United States is vested with the power to fulfill every purpose for which that government was formed, including the six great objects enumerated in the Preamble.  This was the progressive vision of the Constitution advanced Franklin D. Roosevelt, who maintained that the national government had the power to promote the general welfare.  It also was the constitutional theory embraced by Benjamin Franklin when, in his last public act, he petitioned Congress to abolish slavery.  As Jonathan Gienapp, Richard Primus, and David Schwartz have recently shown, similar appeals to implied powers, grounded in the Preamble and Necessary and Proper Clause, were used throughout the founding era, particularly in connection with the Bank of the United States.  Yet this progressive vision of the Constitution is hardly congenial to Lawson and Seidman, who have labored diligently for many years to defend a much narrower conception of government power.

In addition to considering these broader implications of Lawson and Seidman’s project, my commentary argues that: (1) the main thesis of A Great Power of Attorney rests on a thin and unpersuasive evidentiary base; (2) an examination of powers of attorney actually used by five influential founders—James Wilson, Gouverneur Morris, Alexander Hamilton, John Marshall, and George Washington—reveals that the authors’ core claim that “the Constitution resembles a power of attorney” is unconvincing; (3) on at least ten occasions, founders such as Wilson, Marshall, Roger Sherman, Fisher Ames, Alexander Hamilton, and others referred to the United States of America as a legal corporation, characterized the Constitution as a corporate charter, or made other remarks of a similar character; (4) a close look at the drafting history of the Constitution in the Committee of Detail confirms that Wilson, in particular, considered the act of naming the corporate entity rechartered by the Constitution —the United States of America—to be of great significance, in line with Blackstone’s observation that every corporation must be given a name, by which alone it can perform legal acts; and (5) Lawson and Seidman are simply mistaken when they claim that all eighteenth century rechartering instruments explicitly referred to the previous, superseded charter.  In fact, several founding-era state constitutions, including the 1784 New Hampshire Constitution, the 1790 Pennsylvania Constitution, and the 1793 Vermont Constitution, replaced earlier constitutions without explicitly referring to them.

Turning to the Necessary and Proper Clause, my commentary argues that Lawson and Seidman’s characterization of this clause as a narrow “incidental powers” clause is misconceived for at least three reasons.  First, Lawson and Seidman focus their attention almost entirely on the first half of the clause (the “foregoing powers” provision) and generally ignore the second half (the “all other powers” provision).  Second, when they do engage with the “all other powers” provision, the results are weak and implausible.  For example, Lawson and Seidman maintain that the “Department[s] or Officer[s]” to which this provision refers are created by Congress; that “the Government of the United States” to which the provision refers is not, in fact, that government as a whole, but merely “joint actors or single houses of Congress;” and that the Constitution never vests powers in the Government of the United States as “a unitary, corporate entity.”  Lawson and Seidman’s theory of the so-called “Sweeping Clause” thus treats an entire provision of the Constitution, which refers on its face to “all other powers vested by this Constitution in the Government of the United States,” as if it either does not exist or does not mean what it says.  Their theory also is at variance with the fact--which Lawson and Seidman now concede--that the United States undoubtedly does possess implied corporate powers, such as the five powers Blackstone explains in his Commentaries are “tacitly annexed” and “inseparably incident” to every legal corporation.  Finally, Lawson and Seidman’s claim that “necessary and proper” was a specialized phrase at the founding referring to the incidental powers doctrine also cannot be squared with the historical record.

For an elaboration and defense of all these claims, see here.  For the symposium papers by Professors Leib & Shugerman, Primus, and Sherry, see here, here, and here.

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