State Attorneys General and Popular Constitutionalism

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3 Responses

  1. Kevin C. Walsh says:

    This is an interesting post. One practical problem that state AGs can face as vehicles of popular constitutionalism is that they cannot help but prop up judicial supremacy as long as they insist on using federal cases that they voluntarily initiate as political and legal rallying points. In claiming to speak for the people by means of a federal declaratory judgment action, the state AGs end up embracing the idea that the federal courts—and not the people or their elected officials—speak for the Constitution in the end. It is not as if the courts are the big winners, however, for their resolution of these actions for abstract review, brought at the behest of state political actors, feeds into the notion that constitutional adjudication is politics by another means. Perhaps, then, this dynamic does produce a sort of popular constitutionalism, though one that is completely parasitic on constitutional adjudication.

    An alternative approach would be for the courts and for political actors like state AGs to acknowledge in certain areas of constitutional law a gap between constitutional meaning and the doctrine used to implement it in a judicial setting. For example, satisfaction of the rational basis test of modern Commerce Clause jurisprudence in the judicial setting need not be understood as a demonstration for all purposes that Congress has acted within its authority under the Commerce Clause. Popular constitutionalism could then operate in that gap.

  2. Jessica says:

    At the risk of sounding naive, I often find this discussions interesting for what is left out. The claim that courts are anti-democratic can go somewhat far, but courts need litigants and those litigants can be State AGs, citizens empowered by federal statute to press federal statutory/constituitonal rights (latter looking to s. 1983), or citizens in general. Bringing individual claims to court can be a powerful method for an individual to allege a constiutitonal harm, and if armed with an injunction (property right) that power can be quite impressive. It seems to me that this is one method by which “the people” can exercise their popular sovereignty. They, in part, determine what claims get to court. And, of course, we should not ignore the role that private attorneys play, and/or the role that citizen groups play (which we see most often in environmental cases, which States themselves have been able to get over the standing bar since Mass v. EPA).

    So while I express full ignorance of Pozen’s new work, I do remain incredulous that certain pieces of the puzzle appear to get so little attention.

  3. Joseph Blocher says:

    These are both great points. Kevin, I agree that my over-simplified and inevitably flattening account of popular constitutionalism wouldn’t satisfy those (like Larry Kramer, I suppose) who have described popular constitutionalism as being in direct conflict with judicial supremacy. But I think it should be consistent with the “departmentalist” account offered by Post, Siegel, and others. In any event, it clearly demands more thinking.

    Jessica, I certainly don’t disagree (nor, I think, does Kevin) about the importance of courts and litigants – you’re absolutely right on that point. In fact, I’d add that sometimes even an individual litigant can effectively speak for “the people,” whether or not she prevails in court. My point here is a much narrower one, which is that state attorneys generally seem to be playing an increasingly active role in articulating constitutional values, both by filing suits and by filing amicus briefs, and that in doing so they may be engaged in some kind of “popular constitutionalism,” however defined.