A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.
In this Article, I examine the nature of the fiduciary duties that state constitutions place on state legislatures. Generally, I develop the concepts of legislative duties of loyalty and care and propose principles for the enforcement of these duties. Specifically, I consider how these duties might function in the context of the affirmative obligations that state constitutions place on state legislatures to pursue certain policy goals. Ultimately, I present the case that specific affirmative duties placed upon legislatures by state constitutions are governed by general fiduciary duties, and that they ought to be adjudicated as such, using the tools of deference appropriate to the review of discretionary decisions by individuals in positions of trust.
