The Elephant Problem
41 Pages Posted: 9 May 2018 Last revised: 11 Jun 2018
Date Written: April 12, 2018
This paper is a symposium review of Gary Larson's and Guy Seidman's new book *"A Great Power of Attorney: Understanding the Fiduciary Constitution."* Lawson and 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 in that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity on nondelegation grounds of much of the federal administrative state.
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 principle 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 just doesn't follow, and without that interpretive consequence the metaphor has no resolving power in contested cases.
Keywords: constitutional law, constitutional interpretation, original meaning
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