Against Fiduciary Constitutionalism

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.