Popular Constitutionalism and the State Attorneys General

Joseph Blocher

Responding to Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008)

In her article Dead or Alive: Originalism as Popular Constitutionalism in Heller, Professor Reva Siegel argued that the Supreme Court’s opinion in District of Columbia v. Heller relied on originalism to enforce understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. In this Response, Professor Joseph Blocher argues that those understandings reappeared in McDonald v. City of Chicago, in part through the efforts of thirty-eight state attorneys general (SAGs) who filed an amicus brief urging the Court to incorporate the Second Amendment against the states. The SAGs invoked federalism, but their arguments owed more to popular constitutionalism than to the interests of the states qua states. Thus although the SAGs helped solve popular constitutionalism’s problem of institutional design, they raised new questions about their own responsibilities as representatives of the states.