Beruflich Dokumente
Kultur Dokumente
GUY I. SEIDMAN
INTRODUCTION ............................................................................................... 416
I. UNCOVERING THE FIDUCIARY CONSTITUTION .................................... 419
A. The Misconceived(?) Quest for Federal Equal Protection .......... 419
B. Founders and Fiduciaries: Interpreting the Marshallian
Constitution ................................................................................. 424
II. EQUALITY AND AGENCY ..................................................................... 435
CONCLUSION ................................................................................................... 446
In Bolling v. Sharpe, the Supreme Court invalidated school segregation in
the District of Columbia by inferring a broad federal equal protection
principle from the Due Process Clause of the Fifth Amendment. It is often
assumed that this principle is inconsistent with the Constitutions original
meaning and with originalist interpretation.
This Article demonstrates, however, that a federal equal protection principle
is not only consistent with the Constitutions original meaning, but inherent in
it. The Constitution was crafted as a fiduciary document of the kind that, under
contemporaneous law, imposed on agents acting for more than one beneficiary
and on officials serving the general public a well-established duty to serve
all impartially. The Constitution, like other fiduciary instruments, imposes a
standard of equal treatment from which lawmakers and officials cannot depart
without reasonable cause. Although the Constitutions original meaning does
not define precisely the answers to all equal protection cases, and does not
necessarily prescribe norms identical to those of existing equal protection
jurisprudence, it clearly does prohibit racial discrimination of the kind at issue
in Bolling.