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Tuesday, January 24, 2023

Three Modalities of (Originalist) Fiduciary Constitutionalism

I have posted my forthcoming paper in the American Journal of Legal History here.  The title is "Three Modalities of (Originalist) Fiduciary Constitutionalism" and an abstract follows:

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.



Posted by Ethan Leib on January 24, 2023 at 10:08 AM | Permalink


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