To be clear, we do not cite current understandings and practices as evidence of our assertion that the oath does not govern the arguments presented by lawyers in court. However, if no one has read the oath in support of it in such a way that it requires a substitute confession of the type described above, and no one who has taken the oath in support believes that he should always act as a substitute altruistic arbitrator, these facts certainly strongly suggest that the oath in support is unlikely to require concessions and disinterest on the part of prosecutors. Increasingly, attorneys general1 refuse to defend state laws on the grounds that these laws violate federal and state constitutions.2 With their categorical refusal to defend state bans on same-sex marriage, Democratic attorneys general seem to be at the forefront of the movement.3 But in reality, they have good company because their Republican counterparts have refused to defend other state laws.4 This principle suggests that if an attorney general can (or must) assign the unconstitutionality of a state law in the face of a constitutional claim, then he must have the same authority or duty over a claim to the federal Constitution. Similarly, while an attorney general can (or must) take legal action to challenge the constitutionality of a state law, he or she can (or must) take legal action to challenge the federal constitutionality of a state law.53 Simply put, attorneys general cannot discriminate against federal law because it would not treat federal law as a type of state law. Although the role of the Attorney General varies from jurisdiction to jurisdiction due to legal and constitutional mandates, it generally includes: the justifications for these failures in defending state law were incomplete. Attorneys general who have refused to defend government bans on same-sex marriage have sometimes only repeated the American arguments. Attorney General Eric Holder in connection with his refusal to defend the Federal Marriage Defense Act (DOMA).5 State laws against same-sex marriage are unconstitutional, these attorneys general say, and their defense is therefore unnecessary and perhaps even unconscionable.6 In the meantime, criticism of these non-defenses has been just as superficial. Critics, including several Republican attorneys general, have often done nothing more than Parrot Criticisms of Holder and intonate platitudes that shed little light on legal issues.7 Start with state constitutions. Forty-three clearly state nothing about whether the attorney general has a duty to defend himself (or yield).97 Most of them state that the attorney general`s powers derive from state laws98 or simply create a function without stating his attributes.99 Some of them, such as Indiana`s, say nothing at all about an attorney general.100 Of the remaining seven constitutions, four state that: that the attorney general is the “jurist” of the state101 and three state that the attorney general – as the Texas Constitution says – “will represent the state in all prosecutions. in which the state may be involved. 102 These seven constitutions seem profoundly ambiguous. While the “jurist” of a state indicates that “the state” is the client, this hardly means that the attorney general must always defend the validity of the state`s law.
Similarly, the assertion that an attorney general should “represent” the state in all prosecutions could mean that the attorney general in that account may refuse to appeal a defeat of a lower court or otherwise grant invalidity to state law.103 Take the case of California. The California Constitution speaks of the Attorney General`s obligation to represent the state and his “duty” to “ensure that the laws of the state” are “properly enforced.” 104 While it can be assumed that this wording means that the attorney general must defend state law, California attorneys general have refused to defend state law in disputes over exclusion zones (1966) and same-sex marriages (2008).105 In deep red and blue states, the risks of controversy are mitigated by the fact that one party dominates the political branch. In response to the same groups of voters, this leadership will uniformly support existing state laws or work together to repeal or deny them.219 With respect to same-sex marriage, blue states have either voluntarily lifted bans on same-sex marriage or approved court orders repealing the ban on same-sex marriage.220 As red voters in states generally support these bans, their elected politicians also tend to support them. Not surprisingly, the Red Attorneys General have vigorously defended these prohibitions in court and are doing everything they can to convict blue attorneys general who refuse to defend these prohibitions.221 Of course, the supremacy clause highlights some officials – namely state judges.31 Like others, we believe that “judges in any state” is a reference to state judges (not federal judges, 32 Tying state judges to supreme law means that when deciding cases, they must ignore state constitutions or laws that violate supreme law.33 But this particular duty clearly does not extend to all public officials. The text does not oblige state executives (including attorneys general) to independently assess whether the supreme law prevails over the law of the conflicting state, and then to act in accordance with the supreme law in the exercise of their functions. We believe that a negative conclusion can be drawn with the expressio unius maxim34: the imposition of an obligation on a certain group of state officials (state judges) suggests that other state officials are not as burdened, at least not by the Constitution. For former attorneys general, it was often difficult to achieve political gain by appealing to their party`s supporters. Before party polarization created an ideological divide, Democrats and Republicans were scattered across the spectrum.212 Meanwhile, issues such as abortion, same-sex marriage, and gun rights did not serve as gaps between parties.213 Moreover, attorneys general, legislators, and governors were less likely to engage in partisan battles over legislation.