No taxation without representation! This was the siren song of the colonial era. Under the Constitution, we the people, have a representative in Congress. Our congressman is our representative. What does it mean to be a representative? Have you ever given it serious thought?
An understanding of the founding generation’s core principles and values is embodied in the idea of representation. Those core principles and values are:
1) Liberty – In the Lockean sense of the word
2) Effective government
3) Republican government
4) Decentralized government – federalism
5) Fiduciary government
Representation is embodied under the last item; fiduciary government. The modern dictionary definition of fiduciary is:
A person to whom property or power is entrusted for the benefit of another.
Some examples of a fiduciary are: an agent, a trustee, a guardian, a corporate director, a property manager, and an executor of a will. The founding generation believed that government should be a fiduciary enterprise. Participants in constitutional debates referred to government officials as the people’s agents, trustees, servants, or guardians. The Founders believed government officials were fiduciaries and were bound by the standards traditionally imposed upon fiduciaries.
Some obligations of fiduciaries are:
1) To obey instructions given them, and therefore honor any limits imposed on their power.
2) To act in a manner loyal to the interests of those they work for, and therefore to avoid (or at least disclose) conflicts of interest.
3) To act in good faith – in other words, to be honest.
4) To exercise independent judgment.
5) Not to delegate that judgment without permission.
6) To exercise an appropriate level of care.
7) If a fiduciary managed property for more than one person (e.g. several family members), to treat each of them impartially.
8) To provide regular accountings explaining how funds and other property were managed.
The founding generation was more conversant with fiduciaries and their responsibilities compared to people today. It was commonplace for one person to have an agent acting on their behalf. Small farmers hired large farmers as brokers. Large farmers employed brokers overseas. There were guardians, trustees, executors, and administrators.
The founding generation deduced several principles from the notion that public office was a public trust:
- Like private fiduciaries, government officials had to follow “instructions” – the terms of the Constitution and the laws.
- Government officials had to be loyal to the people they represented. They had to have an identity of interest with the people. The Founders called this sympathy.
- Public officials should be honest.
- Decision makers – whether government officials or voters – should be able to exercise independent judgment. They should not be in a position in which their best judgment might be overridden by others. For this reason, the Founders generally believed that only self-sufficient people of independent judgment should vote or hold office.
- Independent judgment required that agencies of government remain independent. State officials should be free of federal influence and federal officials free of state influence. Within the federal government the legislative, executive, and judicial branches were to be independent of each other. This independence should not be confused with separation of powers.
- It was forbidden for an agent to delegate decision making without the consent of his employer, therefore it was a breach of duty for the people’s representatives to delegate their decision making.
- Government officials had a duty to treat citizens as impartially as possible – a duty the Founders stressed perhaps more often than any other fiduciary obligation.
- Government officials had to account to the public for their actions.
Consider you are a business owner and you own several buildings. Two buildings are located near each other and you hire a person – an agent – to sell Building A and not to sell Building B. You also instruct your agent the he can do what is necessary and proper to ensure the building could be sold.
The agent goes to Building A and finds that there are some unpaid property taxes. He also finds some general repairs are required to fix some plumbing, repair a door, and patch a hole in the roof. So, the agent arranges for payment of the unpaid taxes, hires people to perform the necessary repairs, and puts the building up for sale. In the end, the agent paid $12,000 for the repairs, paid $10,000 in back taxes, and Building A was put up for sale and sold for $1,000,000. The agent reported back to his employer these things and accounted for the expenses and the sale.
The agent was instructed to do these things.
Consider some alternative scenarios.
Two months later the agent returns to his employer and provides an accounting of his actions. The Agent said, I saw Building A needed some minor repairs but after much consideration I thought it was best to demolish Building A and rebuild it. It cost $3,000,000 to demolish and rebuild it and it was sold for $3,000,000.
Or, the Agent says I looked at Building A and Building B and I thought it was best to sell Building B instead of Building A.
Or, the Agent says, I did not inspect Building A and was not aware of what was required to prepare it for sale. But, the Agent did hire someone else to do these things and delegated authority to them to do what was necessary to repair the building. When the Agent received a bill for the repair work it totaled $200,000. Many unnecessary “repairs” were done to the building.
The agent was not instructed to do these things. The agent was obligated not to delegate his powers to another person. The agent was obligated to sell Building A, not Building B.
Your representative in the United States House of Representatives or your delegate in the Maryland General Assembly is expected to:
- Behave as a fiduciary and a public trustee.
- Your representative is supposed to be impartial. Not to favor people or a group of people based on race, gender, religion, wealth, status in the community. Not to represent special interest groups, foreign interests, or corporate interests.
- Your representative is obligated to and authorized by you to perform specific duties which are enumerated in the U.S. Constitution or the State Constitution.
- Your representative cannot delegate their powers to another person or another branch of government. Today, the administrative state is a leviathan. Many powers originally delegated to Congress (i.e. your representative) have been delegated to agencies in other branches of the government. This is a blatant violation of your representative’s obligations to you.
- Your representative is expected to by loyal to you, to identify with you. It was understood that all laws enacted by your representatives ALSO applies to them as well as you. No special consideration was to be given, by a law, to your representative. For example, Obamacare excludes Congressional members and their families. This would be a blatant violation of the public trust.
- To exercise independent judgment – Clearly, very few if any representatives exercise independent judgment. They vote according to political party lines, ideology, or for person gain (which includes campaign contributions).
- State and federal officials should not interfere with each other. This idea has been obliterated. States no longer appoint their Senators. The two distinct governments work hand in glove with each other.
I give attribution for this article to Robert G. Natelson, constitutional scholar and author of the book, “The Original Constitution”. Much of this comes directly from the book or was paraphrased based on Mr. Natelson’s work.