Some Larger Constitutional Lessons from the United States Attorneys' Firings

By VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

Friday, May. 25, 2007

Much of the criticism directed at Attorney General Gonzales and other officials about the firing of eight United States attorneys is based on federal statutes and notions of good public policy. A United States Attorney should not be fired for failing to advance aggressively enough the electoral prospects of one political party, because such a termination might violate the Hatch Act or other federal laws. And regardless of statutory technicalities, it undermines the public good for the government to use its regulatory, proprietary, or prosecutorial powers to promote purely partisan political objectives.

However, we think there is also a constitutional dimension to this issue - although it is one that is grounded more on foundational principles than specific language in the text.

The Constitution Contains and Reflects Many Values, Including One that Opposes Government Acting in Too Partisan a Way

Underlying the various provisions of the Constitution are key principles and values. The Constitution never explicitly uses the terms "federalism," "separation of powers," "checks and balances," "fundamental rights" or even "democracy," but few people would dispute that these are the core ideas on which the constitutional edifice is based.

One layer below these common structural understandings is a basic axiom that the current administration consistently ignores: Power corrupts, and it is the goal of the Constitution to control and minimize that tendency. More specifically, the Constitution itself sets limits, albeit implicit ones, on the extent to which the power of government can be used for partisan political advantage.

This idea isn't some newfangled concoction of liberal judicial activists. It has been endorsed, at least to some extent, by Justice Scalia (certainly no liberal, and a jurist who disclaims and decries activism.) Take National Endowment of the Arts v. Finley, for instance.

There, Justice Scalia argued emphatically that Congress did not violate the First Amendment when it discriminated on the basis of viewpoint in determining the criteria for awarding NEA grants to artists. It was the government's money, and the government could therefore use its resources to promote whatever messages it favored while refusing to subsidize disfavored ideas. Scalia also anticipated the response that this reasoning, taken to its logical conclusion, would permit government to fund programs operated by the Republican Party, while refusing to fund programs of equal quality affiliated with the Democratic Party. However, that kind of partisanship, he explained, would be off limits: "I suppose it would be unconstitutional for the government to give money to an organization devoted to the promotion of candidates nominated by the Republican Party - but it would be just as unconstitutional for the government itself to promote candidates nominated by the Republican Party, and I do not think that that unconstitutionality has anything to do with the First Amendment."

We agree on both counts: Such partisan excess would be unconstitutional. Also, its unconstitutionality is not dictated by one constitutional provision per se.

But that leaves open the question of exactly what aspect(s) of the Constitution are offended, when the government acts out of partisan political motivation too much.

One Constitutional Value - Anti-aggrandizement to Prevent Government From Being Too Powerful

We think there are two sets of related principles to identify here. The first is directed at preventing the accumulation of too much power by the government, in order to avoid the abusive exercise of that power.

Aggrandizement of power can occur in various ways. One form involves centralization. The Constitution includes various structural mechanisms to limit that possibility: Constitutional provisions promoting federalism and the separation of powers operate to diffuse the power of the federal government in order to protect personal liberty.

Another way the Constitution prevents the centralization of power is by limiting the ability of government to form alliances with other powerful institutions in our society. The Establishment Clause norm, to the extent that it requires separation of church and state, is an obvious illustration. It is feared that the merger of government and religion will result in an overwhelming authority -- one that will empower the favored faith and oppress dissenters. As the Court has repeatedly recognized, government alliances with particular religions "go hand in hand" with "religious persecutions."

But there are also other, less visible constitutional examples. Suppose the government attempted to purchase every newspaper, broadcasting station, and cable company in the United States, so that it would be the exclusive source of all the information supplied by the mass media. One might reasonably argue that such a scheme has to violate the Constitution - somehow - even if it were not accompanied by any censorship order or any measure preventing citizens from founding new media outlets.

Aggrandizement of power also results from the entrenchment of power - the purposeful creation of obstacles to political accountability. For instance, part of the intuitive force behind the Court's reapportionment cases (which mandate legislative districts of equal size, the so-called "one-person, one-vote" notion) derives from the instinct that that government cannot rig the electoral system to guarantee one-party rule. Surely, Justice Scalia's acknowledgment that government promotion of one party's candidates violates the Constitution reflects this core idea - that no governing clique can use state resources and the force of law to perpetuate its hold on power.

These fundamental concerns about the aggrandizement and entrenchment of power may not always be stated overtly in the Constitution's text, but it is hard to argue that they do not represent the foundation on which the entire constitutional structure is grounded. It is equally hard to believe that attempts to commandeer United States attorneys - charged with enforcing the law in a fair and just way -- to do the work of partisan political agents and party operatives would not violate these core principles.

A Second Constitutional Value - Preserving Institutions and Persons Who Can Challenge Government

A second set of constitutional principles implicated by the misuse of government authority for partisan political purposes is in some ways the flipside of the first. The Constitution not only serves to directly prevent the government from increasing and entrenching its power, but also works to accomplish this goal indirectly by permitting and protecting checks and counters to government authority.

Thus, the Religion Clauses promote the separation of church and state not only because we fear that an alliance of these power centers would operate oppressively, but also because protecting religion from government interference, and limiting the extent to which religious institutions become dependent on state support, allows faith communities to develop their moral visions apart from the state - and to assert those moral commitments to challenge the abuse of government authority.

Similarly, we would reject attempts by government to acquire ownership of all mass media outlets not only because allowing the government to become the exclusive or primary source of information to the public gives far too much power to the state, but also because an independent press can be an effective watchdog and monitor of government error and oppression.

We see this same constitutional concern about preserving counterbalances against government in the First Amendment cases that recognize the free speech rights of government employees.

To be sure, one of the reasons the courts have protected the speech of public employees -- in a long line of cases beginning with the Supreme Court's ruling in Pickering v. Board of Ed. -- is the fact that working for the government does not completely undercut the employee's status as a citizen - with the rights and obligations that this status entails.

But there is another reason why public employee speech merits First Amendment protection: Those who work for the government are in the best position to see the source of state abuses, to speak out forcefully and knowledgeably against such wrongdoing, and to provide the public the information it needs to hold government politically accountable when it violates the rule of law or the expectations imposed on it by a free society. The ability of public employees to speak out as citizens on matters of public concern is thus another illustration of a constitutionally-protected check on government power.

Here again, it is clear that attempts to staff government positions with individuals whose loyalty is to party rather than country, and whose goals are political advantage rather than the public good, undercut this basic principle about protecting counterbalances against government power.

We rely on government employees to keep their constitutional priorities in order. They may receive their salary from the government, but nonetheless must remain committed to democratic and constitutional principles, and insist that their state employer lives up to those same ideals. When government is of the party, by the party, and for the party, we lose the internal monitoring of the state provided by independent citizens.

A Final Constitutional Value Implicated: The Trust of the People in Government

The loss of that check brings yet another core constitutional axiom into clear relief: Limiting government employment to partisan disciples, not only removes an important counter to government abuses of authority, it also erodes the polity's trust in government.

The American constitutional system trusts the people first; our confidence in government is derivative of our confidence in the citizenry. Under this constitutional order, it is not surprising that confidence in government depends in part on the reality that government needs to enlist and employ the labor of citizens to do its job.

"We the People" not only recognizes the sovereignty of the popular will; it also affirms that "We the People" provide the skill and effort that makes government work. When government operates through "We the Republican Party," rather than through the citizenry, a hugely important basis for trusting government is lost.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law at U.C. Davis School of Law.