Pro-constitutional representation: comparing the role obligations of judges and elected representatives in constitutional democracy.

Author:Jackson, Vicki C.
Position:Abstract through II. Elected Representatives Should Be Understood to Have Pro-Constitutional Obligations to Act to Promote Working Government B. Pro-Constitutional Representatives as Actors Motivated by the Public Good and Elected to Serve the Public Good in Ways Connected to Their Constituency, p. 1717-1756


The role of elected representatives in a constitutional democracy deserves more attention than it typically receives in law schools. Just as judges have a set of role obligations, which are widely discussed and debated, so, too, do representatives. Their obligations, however, are far less widely discussed in normative terms. Understandable reasons for this neglect exist, due to institutional differences between legislatures and courts, law schools' long-standing focus on courts, and the intensely competing demands on elected officials; but these factors do not justify the degree of silence on the normative obligations of representatives. This Essay seeks to introduce and defend the normative concept of "pro-constitutional" legislative representatives --that is, representatives whose goals are to advance the purposes of constitutional democracy within their own constitutional system.

In identifying some of the normative obligations of a "pro-constitutional" representative in a democratically elected legislature, this Essay argues that such obligations are not limited to issues of constitutional interpretation, but extend to an active role in promoting a working and democratic constitutional government. If judges' decisions are generally to be governed by consistently and impartially applied principles, legislators must balance the demands of many competing norms and multiple obligations of accountability. To act representatively, legislators must not only be aware of their constituents' views, but must also be willing to engage with their constituents on and sometimes even seek to influence the substance of those views. To act legislatively representatives must act collectively, and thus, in a heterogeneous and pluralistic setting, they must sometimes be willing to compromise. Representatives also may have obligations of providing information, of fair treatment of constituents, and, in the U.S. Congress, of giving special attention to areas of constitutional legislative jurisdiction in which only the federal government can effectively respond to developments.

This Essay also argues that law schools should give more attention to the normative roles of elected representatives. Focusing on the normative obligations of members of Congress can help illuminate distinctions among differently constituted legislative bodies, as well as degrees of overlap and difference between the role obligations of judges and those of elected officials. Improved normative understandings of legislative members' roles may also bear on statutory and constitutional interpretation. And a more complex understanding of these normative dimensions may help better prepare those law graduates who are themselves elected as representatives to evaluate and respond to the competing demands of their position. Finally, developing a more realistically complex account of normatively attractive conceptions of representation may contribute to ameliorating some contemporary political pathologies.

TABLE OF CONTENTS INTRODUCTION I. THE RELATIVE NEGLECT OF THE NORMATIVE SIGNIFICANCE O BEING A REPRESENTATIVE IN A DEMOCRACY A. Institutional Differences B. Legal Education's Court-Centered Focus C. Competing Demands of Accountability II. ELECTED REPRESENTATIVES SHOULD BE UNDERSTOOD TO HAVE PRO-CONSTITUTIONAL OBLIGATIONS TO ACT TO PROMOTE WORKING GOVERNMENT A. Why the Term "Pro-Constitutional"? B. Pro-Constitutional Representatives as Actors Motivated by the Public Good and Elected to Serve the Public Good in Ways Connected to Their Constituency . C. Defining Pro-Constitutional Attitudes and Responsibilities 1. Acting as Part of Ongoing Government 2. Being Sufficiently "Present" to "Represent" 3. Being "Responsive" and "Accountable" 4. Providing Assistance Fairly and Impartially to Constituents 5. Exercising Opinion Leadership 6. Engaging in Compromise 7. Acting on Matters that Other Jurisdictions Cannot Handle Effectively D. Examples Illustrating Application of Criteria for Pro-Constitutional Behavior 1. Refusals to Confirm 2. Debt Ceiling Crisis, 2011 3. Government Shutdown 4. Legislative Walkout 5. Pork III. PAY OFFS FOR LEGAL EDUCATION? A. Improved Understandings of Alternative Approaches to Legislatures and Electoral Representation B. Theories of Constitutional Interpretation C. Theories of Statutory Interpretation D. Comparative Institutional Insights on Judging E. Law Graduates as Elected Representatives F. Ameliorating Current Political Pathologies CONCLUSION INTRODUCTION

The role of the judge in a constitutional democracy has occupied the time and attention of lawyers, judges, and law students for decades--the concept of a representative, much less so. Legal scholarship has constructed judging both as the problem in constitutional cases and as the desideratum of decisionmaking in the heroic conception of the Herculean judge often conveyed by the case method. The countermajoritarian difficulty--perhaps the leading concept in American constitutional theory in the last half-century--assumes that it is the role of the judge that requires an account. And accounts have been offered--of great variety, normative thickness, and contestedness--not only in constitutional law courses but across a wide spectrum of subjects in which the work of judges is evaluated.

The role of elected representatives has garnered far less scholarly and pedagogical attention in contemporary legal education. (1) In part this may be because it appears normatively unproblematic; elected representatives by definition have authority to act in constitutional democracies. But in a time of declining respect for legislatures and widespread perception of a decline in Congress's ability to function as a lawmaker, (2) those concerned with the basic functioning of American constitutional democracy can no longer afford simply to assume the unproblematical character of the legislator's role.

Judging and representing are two foundations of U.S. (indeed, of any modern) constitutional democracy. Yet legal education neglects the subject of representation, which is a normatively more complex and demanding position in the U.S. federal system than is being a judge; in law schools, however, representation is discussed, typically, in narrow and normatively flat ways. This Essay aims to promote thinking and research in this area. Its claims are these: that the role of representing is neglected in comparison to the enormous literature on the role of judging; that it is worth the effort to try to define the aspirations and responsibilities of a "conscientious" or "pro-constitutional" legislator in the U.S. constitutional democracy; and that the effort is worthy of consideration in law schools, with potentially interesting payoffs in several areas.

In Part I, I elaborate on the relative neglect of the normative dimension of representation in legal education and scholarship. In recent years, some attention has been given to the role of representatives in interpreting constitutional law, (3) and to the importance of representative bodies including members of excluded, disadvantaged social groups. (4) But this growing literature for the most part has not taken on the larger task of offering a more general account of the normative expectations of elected representatives in a constitutional democracy. I note several reasons for this, including real institutional differences among the branches, the judicial focus of legal education, and the genuine challenges of the conflicting accountability demands that representatives may face. But these factors do not justify the degree to which the obligations of representatives have been neglected as a normative focus.

It is possible to develop and to teach a more complex normative account of representation, an account rooted in what I would call the idea of a "pro-constitutional representative." Part II explains this concept, grounding it in several sources: the nature of an elected representative, the nature of a legislator, and the specific contours of the U.S. Constitution with respect to representation and legislative power. It then seeks to define the aspirations and responsibilities of a "pro-constitutional" legislative representative, especially in the national Congress. A pro-constitutional representative is not concerned only with interpreting specific provisions of the Constitution, nor only with ensuring that legislation she promotes would meet constitutional standards. Rather, a pro-constitutional representative is one who more broadly seeks to fulfill the complex and at times conflicting demands of "representing," in many ways a more demanding task than that of "interpreting" a legal instrument. Representing requires not only "presence" but acting, not only responding but initiating. Part II identifies some components of what such a more complex normative account would address. Although these criteria may not be capable of definitive application in specific instances, they provide useful parameters for evaluating representatives' conduct as a whole. They include elements on which there is probably widespread agreement--such as providing information to, and receiving information from, constituents--and other elements, including a willingness to compromise, that I expect to be more controversial.

Finally, in Part III, I return to why the subject is fit for law schools and worth the effort to integrate better attention to the normative qualities of good representatives and their relationship (s) to evaluations of different representative bodies. As to scholarship, thinking harder about what makes a good representative in a constitutional democracy sheds interesting light on comparative forms of representation; it may likewise shed light on interpretive theories based on deference to legislatures or on the idea of "representation-reinforcement." As to teaching, it may better prepare those law students who go on to be representatives themselves...

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