As the 2022 midterm elections approach, citizens should ask to whom an elected official owes a duty of loyalty. Are these candidates merely politicians seeking office to enhance their brand by leading the opposition against Americans who think differently? Or are they seeking office to serve as fiduciaries to the Constitution?
In a dangerously polarized nation, the answer leads to dramatically different forms of governance. The current political strife leads to deceit, distrust, and conflict. Electing fiduciaries should lead to trust that our institutions work for the people.
For 256 years, the U.S. has elected representatives, but their duty of loyalty to whom or what is vague. Of course, all take an oath to the Constitution and represent constituents, but such responsibilities are so abstract that they are meaningless.
The writings of John Locke, Edmond Burke and James Madison reflect a fundamental belief that no power is granted to our representatives as individuals. These representatives are fiduciaries that must act to achieve the public good. As fiduciaries, they cannot act beyond their legal authority and must administer laws impartially. Unfortunately, today this view is rejected by what Madison terms “factions,” groups of citizens united in a common interest adverse to others in the community.
These factions are today’s political parties and interest groups that build their brand, raise massive amounts of money and acquire power by preaching division. The academic literature supports this self-interest by arguing that public officials cannot be fiduciaries since it would be impossible to give loyalty to the many diverging interests confronting elected officials.
While divergent ideas are essential and constitutionally protected, the fiduciary’s duty of loyalty does not apply to individuals, groups or political parties. Instead, it applies to the Constitution’s separation of powers structure, which allows society’s many contestable issues to be debated rationally to foster a consensus around the public good. The process includes a Congress that formulates laws after listening to all sides of a debate; an executive administers those laws, and courts resolve the controversies between branches.
For this structure to work, each branch of government has an independent duty to act as a check on the other branches. This tension is necessary to achieve the public good. Unfortunately, when elected representatives function as politicians, they distort the constitutional structure by placing their loyalty to political parties and interest groups ahead of the institution they serve. Displaced loyalty diminishes the Constitution.
Since our Constitution is held in trust by our elected representatives for the American people, it is protected when these officials vigorously defend the powers and duties of the branch they serve. Such defense is the best mechanism to ensure government is limited to the powers given it by the Constitution.
Today’s political climate illustrates this point. We have one political party controlling the legislative and executive branches. We have an executive making new laws, (student loan forgiveness, for example) or refusing to enforce existing law (immigration). While the executive’s party in Congress may have a majority of members in its caucus, at times, it still may lack the votes needed to authorize the executive’s actions. In instances when the executive acts without congressional authority, his party in Congress generally has the power to block the minority party from preventing the executive’s arbitrary accumulation of power.
As an end run around the Constitution, the politicians in Congress, rather than dealing with the difficulties of the legislative process, abandon their oath to uphold the separation of powers by allowing the executive to make law through regulation, executive order or simply not enforcing laws.