Popular Constitutionalism and the State Attorneys General
Harvard Law Review Forum, Vol. 122, p. 108, 2011
8 Pages Posted: 7 Apr 2011
Date Written: April 6, 2011
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.
Keywords: Constitutional law, state attorney general, popular constitutionalism
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