Three Modalities of (Originalist) Fiduciary Constitutionalism

63 American Journal of Legal History (2023 Forthcoming)

17 Pages Posted: 24 Jan 2023

See all articles by Ethan J. Leib

Ethan J. Leib

Fordham University School of Law

Date Written: January 19, 2023

Abstract

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.

Keywords: fiduciary governance, constitutional law, legal theory, law of office

Suggested Citation

Leib, Ethan J., Three Modalities of (Originalist) Fiduciary Constitutionalism (January 19, 2023). 63 American Journal of Legal History (2023 Forthcoming), Available at SSRN: https://ssrn.com/abstract=4330664 or http://dx.doi.org/10.2139/ssrn.4330664

Ethan J. Leib (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

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