Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy
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CitationVicki C. Jackson, Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy, Wm. & Mary L. Rev. (forthcoming 2016).
AbstractThe 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 as both the problematic, in constitutional cases, and as the desideratum of lawmaking, in the case method and in the heroic conception of Herculean judges. Perhaps the leading concept in American constitutional theory in the last 65 years - the countermajoritarian difficulty - assumes it is the rule of the judge that requires an account. And accounts have been given -- of great variety of great normative thickness, and contestedness -- and offered not only in constitution law courses but across a very wide spectrum of courses as the work of judges is evaluated.
But the role of elected representatives has garnered far less scholarly and pedagogical attention in contemporary legal education. In part this may be because it appears normatively unproblematic; in a constitutional democracy by definition representatives have authority to act. But in a time of declining respect for legislatures and widespread perception of a decline in Congress' ability to function as a lawmaker, those concerned with the basic functioning of American constitutional democracy can no longer afford to simply 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 it is, however, presented in narrow and normatively flat ways. I discuss this in Part I. In recent years, some attention has been given to the role of representatives in interpreting constitutional law. But this growing literature has not taken on the larger task of offering a more general account of the normative expectations of elected representatives in a constitutional democracy. This paper aims to promote thinking and research in this area. Its claims are these: that the subject of representing subject is very 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 possibly interesting payoffs in several areas.
It is possible to develop and to teach a more complex normative account of representation, an account I would call the idea of a "pro-constitutional representative." Part II explains this concept, grounding it in the nature of an elected representative, the nature of a legislator, and the specific contours of the U.S. Constitution; it then tries to define the aspirations and responsibilities of a "conscientious" or "pro-constitutional" legislator, especially in the national Congress. A pro-constitutional representative is not concerned only with interpreting specific provisions of the constitution, nor with assuring that legislation she promotes would meet constitutional standards. Rather a pro-constitutional representative is one who more broadly 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 any specific instances, they provide useful parameters for evaluating representatives’ conduct as a whole. The 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 better integrate attention to the normative qualities of good representatives, and good representative bodies. On 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 ‘representation-reinforcement.’ On teaching, it may better prepare those law students who go on to be representatives to think complexly about their roles. And it may help raise the level of expectations of representatives in ways that would serve the public good.
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