The Florida Law Review Forum asked me to comment on Gary Lawson and Guy Seidman's recent law review article, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care. My comment is now available online. Excerpt:
Constitutional guarantees such as the Fifth Amendment are added to constitutions over time, as new kinds of government abuse are experienced by the people. It is virtually never considered wise to erase an existing constitutional guarantee just because some new, more specific one is added. Constitutions thus tend to grow, to include a larger number of protections, sometimes of increasing precision, even though these may overlap. For instance, when railroad corporations abused the power of eminent domain in the nineteenth century, leading many states to add restrictions on that power far more extensive than the “public use” requirement already found in their existing constitutions, the framers of the new constitutions did not then eliminate their Public Use Clauses. The Missouri Constitution, for example—which has been revised or rewritten seven times—includes five clauses addressing eminent domain, including its original 1820 Public Use Clause. In short, “redundancy is a weak (and ironic) interpretive argument in any legal context,” and particularly in the constitutional context. After all, the founding fathers considered the entire Bill of Rights redundant. Yet the Constitution was written in order to provide different layers of protection for the citizen—layers that are sometimes redundant. That is not surprising: laws can be unconstitutional in more ways than one.
Professors Lawson and Seidman seem to recognize that their principal-agent account of constitutional limits is not coterminous with Due Process of Law theory. If it were, their redundancy argument might support their (apparent) rejection of Due Process of Law. But the opposite is the case: the agency principles Professors Lawson and Seidman rightly see as limiting the discretion of public officials in a republican government overlap without displacing the broader Due Process of Law guarantee that imposes substantive limits on government power, in whatever form. The reason is that these principles operate at different levels of political structure: the Due Process of Law Clause is the most basic guarantee of lawful rule; the principal-agent limit is a restriction inherent in a fiduciary relationship. There is plenty of room (thank goodness!) for both.