Every era gets the constitutional scholarship it needs—after the fact. The Burger Court era saw elaborate efforts to justify the Warren Court. The rise of history and tradition on the Supreme Court has been met by new defenses and criticisms of…standard originalism. The tyro leadership of leading law reviews committed themselves to running constant “Abolish Everything” articles just as abolitionism transitioned from interesting-but-highly-unlikely to politically disastrous fantasy. The bell tolls the end of the fight just as the scholars climb into the ring.
Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing.
Trump’s first term saw the rise of a valuable literature on various direct and indirect aspects of character- and conduct-based examinations of legal actors, focusing on such concepts as political and constitutional “norms” or “role morality.” It also provided a boost to scholarship, predating Trump, that focused on the ways in which fiduciary principles such as the duty of good faith apply in public as well as private law. Leib, writing for himself and with co-authors, has been a leading voice among those arguing for “fiduciary constitutionalism.”
The main job of his latest contribution, evidently a chapter for an edited collection, is to summarize the ways in which good faith is “central to constitutional law, even as the apex Court seems only ambivalently committed to its ability to be useful in deciding cases.” As Leib notes, its centrality begins with the text itself. Just as marriage begins with public vows, so both Article VI and Article II of the Constitution mark the entry from private status to public office with a promise before witnesses: a binding oath to “support this Constitution.” The president is further bound to “faithfully execute” the office of president and the laws of the United States. Other portions of the text, such as the Emoluments Clause, forbid the kind of self-dealing that is an affront to fiduciary duty.
Here and elsewhere, the Constitution relies on the oath-taker’s understanding that any power he exercises stems from the proper execution of the office, not the unfettered will of the individual who occupies it. (“What are the highest places,” as a judge once put it, “but obligations of the greatest dewties?”) At the same time, by swearing, the oath-taker openly acknowledges that his private character and reputation have been fully yoked to his performance of his public duties. Or, as Robert Bolt’s Thomas More puts it, “When a man takes an oath, he’s holding his own self in his own hands like water; and if he opens his fingers then, he needn’t hope to find himself again.” Knowing that men are no angels, the Constitution’s crafters nonetheless envisioned officers who treated one’s conduct in office as a commitment of one’s honor—indeed, of one’s soul.
The commitment to good faith in the performance of one’s duties runs deeply through the Constitution, but not smoothly. The difficulty of discerning bad faith, and the judicial custom of assuming officials’ good faith, means courts are often reluctant to make law turn on tests of good faith and proper motive. Courts often frame defenses and safe harbors for official conduct in terms of their good faith. Conversely, they look for indications of evidence of improper or impermissible motivation when evaluating officials’ actions. In judicial review under both constitutional and administrative law, “smoking out bullshit” is a key function for the reviewer. (“Bullshit,” in the Frankfurtian sense of speaking without regard for the truth. Firing employees with sterling records for “poor performance,” with political appointees telling HR managers to revise past reviews and to cite poor performance regardless of the truth? That would be bullshit. It is also a lie, of course. But central to its bullshitiness is its choice of a barely plausible pretext with a casual indifference to its accuracy. Bullshitting is the dominant mode of discourse of the current Trump regime.)
Against this, Leib acknowledges that such decisions as Trump v. United States and Trump v. Hawaii indicate “irregular support for motivational inquiries on the current court.” That conclusion is further reinforced by the Supreme Court’s move toward history and tradition as the lodestar of rights analysis, in a way that replaces tiers-of-scrutiny inquiry into improper motivations with an effort to identify proper or improper laws by dint of provenance. But at base, Leib argues, concerns with good faith continue to rest “at the very foundation of U.S. constitutional law.” Assumptions about officials’ duties—to avoid self-dealing, to work for the good of others and not themselves, to wield power with care, and so on—remain essential to constitutional and administrative law work, he suggests, even if courts often maintain these values through second-order rules rather than direct investigation.
For Leib, the fact that courts are reluctant to inquire into officials’ good faith is understandable, given concerns about institutional competence; it’s simply another example of the ways in which courts’ “decision rules” often apply more clearly but also more narrowly than the underlying “conduct rules.” And the fact that there can be indeterminacy or under-determinacy in applying the requirement of good faith to constitutional officers, while “frustrating,” can also be seen as consistent with the important role of context in such inquiries. It reflects a desire not to “interrupt fiduciary morality that works better with a little room to grow without getting crowded out by micromanagement.” Leib concludes that good faith remains a central conduct rule for officials—one of “the very foundations of constitutional government in the United States”—even if the judicial treatment of that rule involves “careful calibration.”
This article is, to be clear, summary in nature. It is a starting point for those who may not have thought much about this conception of constitutionalism and the obligations of officials, but who are newly sensitized to the need to do so and would like to learn more in something less than 80 or 90 pages. It is concise and well-sourced, nicely tying together the argument for fiduciary constitutionalism’s relevance inside and outside of the judicial context. Its value lies in these things, not in real or self-alleged “novelty,” a quality prized by student editors because of their inability to select for depth or expertise, and which in turn has become internalized by law professors, acting not as scholars but as market participants.
Its value also, perhaps even primarily, lies in one more thing: its timing. That timing both supports its arguments and raises questions about them, or about their efficacy. Leib’s summation of fiduciary constitutionalism, as well as the work that he and others are continuing to advance, could not be more relevant right now. The current regime has pushed a more thorough-going unitary, centralized approach to the presidency than anyone in modern history, and joined those actions with a reckless rate of change and a slippery view of law and legal duty.
Under those circumstances, even a neutral or supportive observer of this president should be interested in the public duties, virtues, and commitments that are, as a matter of constitutional obligation, supposed to channel and restrain his actions. That person should be equally interested in how the oath, and other fiduciary aspects of office, are supposed to direct subordinates—from Elon Musk and Russell Vought all the way down to a lowly peon, like a Cabinet secretary—in the performance of their duties. One needn’t like or dislike the man or his policies to acknowledge that Trump’s approach to presidential administration demand attention to these questions, and to how they ultimately cash out in the courts.
Of course, one might be less supportive, one’s sense of reality not so purblind. One might see the administration for what it is. “What it is” isn’t incipient fascism, most likely. (Although this administration has shown an unmistakable eagerness to hire, hang out with, and champion fascists, along with Jew-haters, rapists, Blut-und-Boden freaks, and other thugs—and that’s just counting the Trumpian intelligentsia.) But this is certainly a personalist, patrimonialist, authoritarian administration, staffed mostly by the craven and the roguish—and all of it in the service, not of party or ideology, but of the whims, fads, resentments, corruption, and appetites of a walking id. The title of this jot is a quote from Trump himself, as he was delighting, Commodus-like, in Bill O’Reilly’s flattering lie that Trump is the greatest president in American history. In reality, Trump and his administration resemble Washington’s less than they do a semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste. (Historically speaking, the Mob was also much tougher on Russia.)
Leib’s introduction to fiduciary constitutionalism is especially valuable against this real-world backdrop. If nothing else, it provides the measure against which the current regime’s dizzying plunge away from honor and the rule of law can be evaluated. But Leib’s treatment does two things more. On the “conduct rules” side, it encourages us to think about the degree to which constitutionalism generally, and our Constitution specifically, not only assume but demand basic qualities of character and virtue. For all the usual talk of structures, incentives, guardrails, and the like, without those personal qualities all else is mere parchment barrier. The Constitution does not prevent officials from departing from the ordinary politics, policies, and practices we are accustomed to. But it does require something more than ordinary men and women—not only at the top, but also within positions of responsibility throughout the executive branch.
On the “decision rules” side, reading Leib’s piece in the current moment encourages us to think more about the courts’ increasing reluctance to think in terms of character, duty, or motive itself. The reasons for this reluctance are varied, and Leib does a good job of spelling them out in this context. But one wonders whether the courts’ “irregular support for motivational inquiries,” which Leib describes as stemming from nervousness about courts’ competence to judge such matters, does not also reflect those judges’ confident assumptions that the executive branch’s officials possess basic qualities of character and virtue.
Those assumptions rely in substantial part on the ordinary processes and customs that are in place and have been followed by both Republican and Democratic administrations. If those assumptions become plainly unwarranted, perhaps the courts need to adjust their approach to compensate. When the Court in Trump v. Hawaii refused to follow the tweets, it did so in the belief that rounds of litigation had forced the administration into something like a more normal process of interagency consultation, with concomitant amendments to the travel ban. There was some reason in this. What, then, should the justices do when it is clear that this round of the administration just is its tweets—that to strip it of its vulgarity and “hyperbole” is to miss the point entirely—and that the grown-ups who might conduct ordinary business with more than one eye on the law have been banished? The Supreme Court’s approach through the first Trump term was to nudge the administration back within the guardrails of ordinary process, while premising its grants of power on assumptions about the ordinary good faith of those who fill any given executive branch. The Justices are not morons. They know that those assumptions no longer hold. One would not be surprised to see the Court, at the point at which the “acoustic separation” becomes too vast, turn back to a more frequent and explicit use of motive inquiry. It certainly ought to.
We might finally ask whether these questions come too late. If it is, it will not be because of the extraordinary nature of this regime and its Dear Leader alone. It will also have much to do with the degree to which our very culture, both elite and popular, has simply dispensed with the very idea of character and virtue as central and necessary elements of individual and official conduct. The blame could be heaped on social media—and, indeed, one of the most striking aspects of the Trump regime is not that it lives on social media, but that it seeks to make the lies and vulgarity of social media normative offline as well as online: it sees politics as the continuation of Twitter by other means. The problem might be traced further back, to a hollowness at the heart of individualistic, thin versions of liberalism or neo-liberalism. And it might have to do with the extent to which those who reject liberalism, for the purported reason that it does not sufficiently foreground basic requirements of virtue, have instead filled the post-liberal space with paganism, hedonism, grifting, and der Wille zur Macht. Whatever the case, it may simply be that good-faith constitutionalism requires a vocabulary that we as a culture no longer possess. As I said: exquisite lousy timing.
This article certainly cannot answer those questions. But Leib’s chapter provides us with an excellent recapitulation of the basics of fiduciary constitutionalism—its basic tenets, the state of the field, and the issues it faces going forward. It is needed now more than ever and also, quite possibly, comes too late.
Trackbacks/Pingbacks