The Constitution was adopted amid a belief that government is a public trust.*
Does the Constitution require federal and state governments to adhere to formal duties of public trustโthat is, to fiduciary duties?
In some places, at least, it clearly does: The Equal Protection Clause of the Fourteenth Amendment imposes on the states what is essentially the fiduciary duty of impartialityโthat is, the requirement that states not treat people differently without good reason. The requirement in the Necessary and Proper Clause that incidental laws be โproperโ may impose a similar rule on the federal government when that government legislates under the Necessary and Proper Clause rather than under its core enumerated powers.
But what if no specific clause governs the issue? Last year I reported that Gary Lawson, Guy Seidman, and Iโthree constitutional scholars of contrasting political viewsโhad written an article exploring that question.
We pointed out that in interpreting any fiduciary document (like the Constitution), the Courts are supposed to apply certain background rules, unless the document says differently.We noted that one of the standard background rulesโexisting both at the Founding and todayโis that fiduciaries have an obligation not to treat people differently without reasonable cause: the duty of impartiality. We concluded, therefore, that the 1954 Supreme Court case invalidating segregation by race in District of Columbia schools was correctly decided, because in the area of education mere skin color is not reasonable cause.
The article has now been formally published by Boston University Law Review, one of the nationโs more prestigious law journals. You can read it here.
* Note: Our Founders understood the term โpublic trustโ in the way used by John Locke and others: as the obligation of the government to comply with fiduciary standards. Left-wing environmentists have hijacked the term to restrict the freedom of private citizens. The problem began when someone misunderstood and distorted an 1892 Supreme Court case on public trust. More on that soon.
- How the Founders Explained Limits on the Federal Government - January 21, 2026
- The Constitution and the Trump Tariffs - December 7, 2025
- Ancient Rome and the Constitution - October 29, 2025