By Any Other Name: Rational Basis Inquiry and the Federal Government's Fiduciary Duty of Care

31 Pages Posted: 15 Aug 2016

See all articles by Gary Lawson

Gary Lawson

Boston University School of Law

Guy I. Seidman

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: August 12, 2016

Abstract

Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. All federal actors under the Constitution exercise delegated authority (from “We the People”) as agents, and thus all federal actors under the Constitution are bound by a duty of care. This duty has much affinity with the business judgment rule of corporate law, in that the scope of the duty of federal actors, as gleaned from eighteenth-century agency and corporate law, probably does not exceed avoidance of gross negligence. Building on a forthcoming book entitled “‘A Great Power of Attorney’: Understanding the Fiduciary Constitution,” which demonstrates in depth the fiduciary character of the Constitution, this article examines the contours of the duty of care that forms part of the background of every constitutional grant of power.

Keywords: duty of care, fiduciary, rational basis, substantive due process, original meaning

JEL Classification: K10, K19, K39

Suggested Citation

Lawson, Gary and Seidman, Guy I., By Any Other Name: Rational Basis Inquiry and the Federal Government's Fiduciary Duty of Care (August 12, 2016). Boston Univ. School of Law, Public Law Research Paper No. 16-29. Available at SSRN: https://ssrn.com/abstract=2822330 or http://dx.doi.org/10.2139/ssrn.2822330

Gary Lawson (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)

Guy I. Seidman

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel
972-9-952-7348 (Phone)

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