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

• Author: Jackson, Vicki C.
• Position: II. Elected Representatives Should Be Understood to Have Pro-Constitutional Obligations to Act to Promote Working Government C. Defining Pro-Constitutional Attitudes and Responsibilities through Conclusion, with footnotes, p. 1757-1788

3. Defining Pro-Constitutional Attitudes and Responsibilities (113)

   The task of defining "pro-constitutional" behavior for elected representatives is more complex than the analogous task of defining pro-constitutional behavior for judges. The ethics, virtues, and desirable attitudes or habits of mind of an elected representative cannot be expected to overlap entirely with those of a judge; they are different roles, with different tasks. Some lines are drawn with relative clarity about the role of a judge--to be principled, consistent, and impartial. For a representative, it seems much harder--what is the core? Ian Shapiro writes:

   If representatives follow Burke's ... admonition not to sacrifice their judgment to the opinions of their constituents, they are vulnerable to charges of elitism, yet if their actions reflect the vicissitudes of public opinion, then they are "pandering." In short, representation is an elusive notion in democracies, a seemingly inevitable practice whose legitimacy is inescapably suspect. (114) What, if any, norms of impartiality towards all constituents or the whole country, do members have? Would we really want representatives who are as "principled" in their actions in public office as judges? That the Constitution subjects representatives but not judges to frequent elections suggests not. (115) Do we rather want representatives who can work with, and compromise with, other representatives to produce a product (legislation) that can function as law? (116) Accountability, to be sure, is an important part of being a representative--but to whom or what? to the people who voted for the representative or to the whole constituency? to the country as a whole or to her political party? to the legislature of which she serves as a part? or even, to a limited extent, to those beyond the country who are affected by her action or inaction? "Accountability" has something of an "after-the-fact" quality to it. Is there more to being a good representative than being accountable to the right constituencies or stakeholders?

   I am not sure there is one single normative conceptualization that will capture the range of ways of being a good representative and the range of considerations that inform judgments of the right course of action for a conscientious representative. (117) There are, of course, the "shalt nots"--thou shalt not take bribes for legislative votes, nor engage in extortionate misuse of the office. There are also the important constitutional "shalt nots"--thou shalt not pass a law abridging the freedom of speech, or establishing religion. (118) Such constitutional commandments certainly embrace a role for representatives themselves to develop an understanding of what those constitutional limits are.

   But what are the positive "thou shalts"? What does it mean to give a good account of oneself as a representative in a constitutional democracy? (119) in a constitutional democracy built on commitments to divisions of power, checks and balances, federalism, the protection of liberty and of the fundamental equality of all members of the polity?

   1. Acting as Part of Ongoing Government

      As argued in Part II.B above, perhaps one could say that an elected representative has some obligation to make the government in which she serves work for the people--that is, to govern, to act, rather than simply to obstruct. I recognize that a representative may have a conception that obstructing "big government" projects, or some trends, is both the right thing to do and what she was elected to do. But even so, standing for Congress and being elected surely can be understood to carry with it an obligation to participate, affirmatively, in governance, even if only for those most basic functions of a state, and those required, implicitly or explicitly, by the Constitution (for example, to provide for a census every ten years, or to guarantee a republican form of government). (120)

   2. Being Sufficiently "Present" to "Represent"

      Second, we might say that representatives have some obligation to be sufficiently active and present in the legislature so as to achieve some minimum level of in fact "representing": making their constituencies--with their mixes of views, values, interests, and conflicts--"present" in the larger body so that the larger body's work has democratic legitimacy vis-a-vis individual constituencies. (121) In these capacities as a representative of a particular constituency and as a member of the larger legislative body, a representative may have obligations both to deliberate with other legislators and to advocate for particular goals or positions. (122) Likewise, being present as a representative may imply obligations to check and question initiatives of the executive branch, to monitor and provide oversight of existing programs, and to consider the need for legislative change. (123) Some of these obligations might be captured under the idea of "responsiveness" to constituents. Such responsiveness might be seen as having dual components: developing and advancing policy preferences of constituents while limiting developments that ones' constituents oppose, and, in the U.S. system, providing constituent service on individual matters, as discussed further below. (124)

   3. Being "Responsive" and "Accountable"

      Third, some core responsibilities of listening to, advocating for, and providing information to voters may derive from being a democratically elected representative who can remain in office only by winning a (presumptively, if not actually) competitive election. (125)

      Part of the core of being a representative is to be "accountable" to one's constituency, which is not necessarily the same as being "responsive" in the sense of advocating for constituents' immediate preferences. One can debate the balance between the "responsivenesss" and the "independence" that is normatively desirable and politically possible for elected representatives to enjoy. But on any theory of the role of a representative in a democracy, representatives must be accountable to voters in some way. And any form of accountability requires that the voters be able to evaluate their representatives' work--whether representation is seen as a "promissory" grant of authority, in which the voters look back to see if their representative fulfilled promises; a more "anticipatory" model, in which a representative tries to anticipate voters' views at the time of the next election; or a more "gyroscopic" form of representation, in which the constituency trusts the representative to make independent decisions but retains the power to not reelect the representative if her account of her actions as a representative is not satisfying. (126)

      Some argue that the "accountability" function is best satisfied by direct communications by the representative--for example, over the Internet or social media--explaining each of her votes or other actions to the voters. (127) But few would argue--on any theory of being a democratic representative--that there is no need for any flow of opinion and information to and from voters about the representative's performance. (128)

      Information flow, then, about the issues confronting our government and the position of different parties or candidates on those issues is essential. Whether one conceives of elected representatives as subject to voter mandates or after-the-fact voter accountability, (129) or of representative government as serving the public good through interest group pluralism or through more deliberative conceptions of democracy, (130) information flow permitting evaluation of competing options (including, where an incumbent is running for reelection, her performance in office) is critical. (131)

      It is not only the obligation of accountability that implies obligations to listen, to respond, and to provide information. Without information flows, a representative cannot--during her term in office--well fulfill her obligations to advocate for the interests of one's constituents as they understand them, or to advocate to one's constituents what the representative believes the best understandings or solutions to problems may be. Thus, understandings of representatives as "acting for" their constituents, in Pitkin's terms, also require regular and two-way information flows. (132)

   4. Providing Assistance Fairly and Impartially to Constituents

      Fourth, do members of Congress, as representatives, have obligations to provide their constituents with assistance in dealing with other parts of the government, such as executive branch agencies? Should these obligations be conceived as arising out of the representative-constituent relationship, or also (or rather) as reflecting a "checking" function of legislators on whether executive departments are properly carrying out the laws? (133) And if assistance is provided to some constituents, must representatives offer comparable assistance on a nonpartisan basis to others? That is, do members of Congress have obligations of fairness in dealing with their constituents, (134) even those with whom they disagree? (135)

      Supreme Court Justices have said that "[a]n individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district." (136) If so, would representatives have obligations of fair dealing with all their constituents? If, as the Court recently recognized, "partisan gerrymanders" are incompatible with democratic principles, (137) would partisan limits on constituent assistance also be incompatible with democratic principles? With the fundamental equality of all members of the polity?

      An obligation of fair dealing may arise when constituents come to their district or state representatives with requests for assistance. But such an obligation might also be relevant when thinking about...