The Fiduciary Foundations of Equal Protection

Professor Gary Lawson, "humble scrivener," delivers annual Beck Lecture

gary lawsonPerhaps it is not immediately clear what litigation over British aristocrats’ wills in the 17th and 18th centuries has to do with a young white woman contesting the University of Texas’s affirmative action policy in 2013. However, on April 16, Professor Gary Lawson made that connection possible as he delivered the annual Beck Lecture, established in honor of Phillip S. Beck (’76). His lecture, entitled “The Fiduciary Foundations of Equal Protection,” was based on an eponymous paper, co-authored with Professor Guy Seidman of the Interdisciplinary Center, Herzliya.

Lawson’s lecture focused on two Supreme Court cases: McCulloch v. Maryland, which allowed Congress to establish a national bank, and Bolling v. Sharpe, which found school segregation in DC unconstitutional. Such focus on the Supreme Court was unusual for Lawson, as he noted that he talks about the Supreme Court only when he must, and even then deigns to do so only “with a mixture of disinterest and disdain.”

But Lawson was forced to turn to the Supreme Court, he said, as he searched for “original constitutional meaning, or as I like to call it, constitutional meaning.” Nearly everyone, Lawson said, agrees that the 14th Amendment to the Constitution imposes some kind of equality norm on each state government—though the content of that norm is hotly contested. A segment of legal scholars, some of whom call themselves Federalists (a society Lawson helped found), however, do not believe that the 14th Amendment imposes an equality norm on the federal government. But just because there is not a 14th Amendment-style equality norm explicitly written into the Constitution does not, Lawson argued, mean that the federal government can ignore equality. It’s just that the equality norm has to come from somewhere else in the Constitution.

Lawson’s search into whether there is an equality norm began with Justice Marshall’s line in McCulloch: “We must never forget that it is a constitution we are expounding.”

“Usually,” Lawson said, “when I hear someone quote – ‘It is a constitution we are expounding!’ – I reach for the Constitution nearest me and clutch it to my breast because whoever is quoting that line is about to rip the Constitution into shreds and then throw it into the nearest river.”

But Lawson thinks that Marshall’s line is helpful in context. The idea is that how you interpret something depends on what it is. For example, Lawson explained, we interpret shopping lists, novels and poems differently because they are different things.

Lawson found his answer to the question, “Then what is a constitution?” in the writings of James Iredell, one of the framers of the Constitution. Iredell called the Constitution essentially a power of attorney document, in which a bunch of “principals” (the states and the people) gave an agent (the federal government) a list of powers and instructions so that the agent would take care of things (roads, national security, schools) for them.

Having decided that the Constitution is essentially just a grant of power from principals to agents, a power of attorney, Lawson had to figure out how the framers would have interpreted a power of attorney document. To do that, he turned to cases from the 17th and 18th century (some even earlier) that interpret power of attorney documents about equality matters. For example, Lawson cited a 1768 case, Burrell v. Burrell, in which a father had left money to his wife with instructions that she disperse the money to his children “such fortune as she should think proper.” This widow chose to give significantly less money to one of the children who already had quite a substantial income. The son who was given less money sued, arguing that she had to distribute the money equally. No, a court told him—she did not necessarily have to disperse it equally; she had to disperse it fairly.

This idea holds true in a number of other cases Lawson cited, leading to his conclusion: Around the time of the Constitution, power of attorney documents required agents to treat multiple principals fairly, but not necessarily equally. It was legally okay for an agent to treat multiple principals differently, but only if the agent had a good reason to do so.

Lawson analogized this idea to the Constitution, and to our federal government: Power of attorney documents require agents to treat multiple principals fairly, and only differently if they have a good reason. The Constitution is a power of attorney document where the federal government is the agent and the people are the principals. So the federal government can treat people differently, but only if it has a good reason.

Which brings us, and Lawson, to the young white woman challenging the University of Texas’s affirmative action policy. Professor Bill Marshall pointed out the connection during the question-and-answer period of Lawson’s lecture: Federalists and originalists, both groups to which Lawson belongs, are generally opposed to affirmative action, though Lawson himself said he has no strong opinions on the subject. If the federal government can treat people differently only if they have a good reason, is there a good reason for having affirmative action?

Lawson cheerfully admitted he did not have an answer to that question. “I stand here as a humble scrivener,” he told the audience to loud laughter. “No,” he protested over the laughter, “No, I’m quite serious. I’m simply saying what this Constitution means.” But the laughter did not abate (though a long round of applause soon joined it), suggesting, perhaps, that saying what the Constitution means is not exactly a humble task.

Reported by Elizabeth McIntyre ('14)
May 13, 2013

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