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.
Repository CitationVicki C. Jackson, Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy, 57 Wm. & Mary L. Rev. 1717 (2016), https://scholarship.law.wm.edu/wmlr/vol57/iss5/4
57 William & Mary Law Review 1717-1788 (2016)