The Erosion of the Rule of Law When a State Attorney General Refuses to Defend the Constitutionality of Controversial Laws

Publication Date

Spring 1-2016

Document Type



Constitutional Law | Jurisprudence | Law and Politics | Legal Profession | Rule of Law


In this Article, I focus on the duty of state attorneys general to defend laws with which they personally disagree. Part I of this Article discusses two United States Supreme Court cases that laid the groundwork for the increased number of state attorneys general refusing to defend state laws. It also explores the various ways in which state attorneys general have handled litigation over the right to same-sex marriage when those attorneys general disagreed with the existing laws. Part II of this Article discusses the legal duty of state attorneys general to defend the law and then explores the longstanding historical exceptions to that duty. Part III highlights the legal and political difficulties presented when a state attorney general refuses to defend the law based on personal beliefs of unconstitutionality. Finally, Part IV presents a viable approach to those situations where a state attorney general believes the law is unconstitutional, balancing the right of the people to have their laws defended in court with the attorney general’s strong personal beliefs that prevent him from carrying out his duties.