State Attorneys General and Popular Constitutionalism
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.