State Attorneys General and Popular Constitutionalism
posted by Joseph Blocher
David Pozen recently published his second article on judicial elections in the pages of the Columbia Law Review. In the first, “The Irony of Judicial Elections,” 108 Colum. L. Rev. 265 (2008), he explored the “new era” of judicial elections and discussed the tradeoff between those elections and the traditional role of the judiciary. In the new piece, “Judicial Elections as Popular Constitutionalism,” 110 Colum. L. Rev. 2047 (2010), he investigates the linkages between judicial elections and popular constitutionalism. In reading it, I couldn’t help but wonder if there’s another set of actors at the state level who are also highly relevant to the enterprise of popular constitutionalism: the state attorneys general.
State attorneys general (“SAGs”) are elected in all but a handful of states, and therefore presumably have some incentive to speak for “the people.” Increasingly, they seem to be doing so in state and federal constitutional cases, either by strategically bringing constitutional challenges or by filing amicus briefs. Those kinds of filings have put SAGs at the forefront of some of the most important constitutional controversies of the past few years, including the current challenge to healthcare reform. Perhaps that makes them one of the more effective, but underappreciated, mechanisms of popular constitutionalism.
And yet there’s something odd about treating SAGs as mouthpieces of popular constitutionalism. State attorneys general, after all, are often thought to–and claim to–represent the interests of the states qua states, and not simply the preferences of the people who elected them. What are they to do, then, when the former seem to be in tension with the latter? In McDonald v. City of Chicago, thirty-eight SAGs filed an amicus brief asking the Supreme Court to incorporate the Second Amendment against their states, all of which already recognized an “individual” right to bear arms under their own constitutions. This was, as Justice Stevens pointed out in his dissenting opinion, something of a “puzzling” position, at least if one believes that the SAGs’ role is to speak for the states as states. If, however, the SAGs speak directly for “the people”–most of whom support the “individual rights” reading of the Second Amendment–then the McDonald amicus brief might make more sense.
I’m not sure how to balance these at-times competing roles and interests, but it does seem that the state attorneys general should play a more central role in accounts of popular constitutionalism, particularly since it seems as if they’re playing an increasingly prominent and self-conscious role in the development of federal constitutional law.
December 6, 2010 at 8:43 am
Posted in: Constitutional Law, Second Amendment, Uncategorized
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Responses (3)
Kevin C. Walsh - December 6, 2010 at 10:14 am
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.
Jessica - December 6, 2010 at 6:03 pm
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.
Joseph Blocher - December 8, 2010 at 10:00 am
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.
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