Blocher on Popular Constitutionalism and the State Attorneys General

April 13th, 2011

Joseph Blocher has a cool new piece in the Harvard Law Review Forum, exploring the role that the State Attorneys General played in McDonald to vindicate notions of popular constitutionalism, rather than to represent their interests as states qua states.

Here is the abstract of Popular Constitutionalism and the State Attorneys General:

Popular constitutionalism is a bit like the dark matter of the constitutional universe – it seems to exert a powerful force on constitutional theory and doctrine, but even those who believe in it are not always entirely sure how it works. Do “the people” influence constitutional interpretation through elections? Impeachments? Mob rule? This Response considers another possible answer: the people act through the state attorneys general (SAGs), who have played a prominent role in the Court’s recent Second Amendment cases and the ongoing challenges to the constitutionality of health care reform.

In Dead or Alive: Originalism as Popular Constitutionalism in Heller, her trenchant analysis of popular constitutionalism in District of Columbia v. Heller, Professor Reva Siegel persuasively argued that “Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism.” Those understandings resurfaced in McDonald v. City of Chicago, thanks in part to SAGs, thirty-eight of whom argued that the Amendment should be incorporated against the states. Although the SAGs invoked federalism, their arguments owe more to popular constitutionalism than to the interests of the states qua states. And by effectively recasting themselves as “the people’s attorneys general,” the SAGs helped solve popular constitutionalism’s problem of institutional design even as they raised new questions about their own responsibilities as representatives of the states themselves.

From the article:

Behind this flowery picture of SAGs’ representing the people’s con- stitutional values lies a thorny question: aren’t SAGs supposed to stand up for the states? They are, after all, state attorneys general, and usually invoke and argue for the importance of federalism and state sovereignty.21 By supporting incorporation in McDonald, how- ever, the SAGs effectively sought to expand the federal judiciary’s power over the states. What does that decision say about SAGs’ rela- tive commitments to popular constitutionalism and to federalism?


I replied to Josephs’s blog posts on this topic back in December.

Incorporation of the Second Amendment required the use of the Fourteenth Amendment (I won’t bother here rehashing the debate between due process and privileges or immunities). The Fourteenth Amendment was ratified by conventions in the several states. I think it is fairly uncontroversial to assert that the states, the sovereigns that ratified the Fourteenth Amendment, have an interest in the enforcement and application of it.

The Fourteenth Amendment, perhaps more than any other Amendment ratified changed the relationship between the state and federal governments. The states ceded certain aspects of their sovereignty in order to achieve a new balance of government, and likewise ensure the protection of certain liberties for all. I won’t get into the selective/total incorporation debate, nor will I rehash my view of incorporation through the privileges or immunities clause. Suffice to say, the 14th amendment aimed to protect a base level of liberty and rights for all Americans in all states. The states that ratified this recognized that the protection of rights was no longer purely a matter of state law. For example, the Jim Crow south could not be trusted to protect certain rights, and the northern states had an interest to protect the freed slaves.

Likewise, it seems that states should have an interest when a fellow sovereign–Illonois in this case–permits the deprivation of a constitutional right the 14th amendment secures–the right to keep and bear arms (assume this is right as a matter of constitutional law for purposes of the argument).

Thus, it seems quite proper for Virginia, for example, to object when Illinois is flouting the protections that the Fourteenth Amendment, an Amendment that the states ratified, protects.

I highly doubt this rationale ever dawned on the AGs that signed the brief, but I think it is a plausible and valid reason for state AGs to get involved in these issues.

Orin Kerr said I made a “nice point.”

I look forward to reading the full piece, as should you.