Federalism and the SAGs’ Brief in McDonald

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4 Responses

  1. Jim Maloney says:

    How about this? States as states once had a greater role in the process of judicial confirmation of Supreme Court justices than they do now, and thus had a greater influence on the shaping of federal law. Before the 17th Amendment provided for popular election of Senators, states as states each sent their pair to Washington, and each such pair had a greater-than-2% (<50 states then) share in the process of advice and consent in judicial appointments. No more. Indeed, now, nearly a century after that change occurred, and with the advent of techno-gladiator-style broadcasting of Supreme Court confirmation hearings, the role of states as states in shaping the composition of the Supreme Court is virtually nil in comparison to the various other influences. So the SAGs' amicus participation may be seen as remedial, or perhaps more properly as a vestigial exercise of a once-greater-but-more-indirect state power in shaping federal law. I recognize that this proffered explanation of a states-qua-states component to the SAGs' amicus participation overlaps conceptually with the SAGs' undeniable role in “present[ing] the constitutional interests of 'the people' directly,” but then again, if popular sovereignty is to be given more than mere lip service, those roles/concepts overlap almost by definition. What is perhaps more thought-provoking is that the context (incorporation of a Bill of Rights provision, a very rare event in modern times) in which this arises gives the phenomenon almost a “founding” character in that it means that the participating states want to bind themselves, by the shaping of federal constitutional law’s applicability to states, in a manner that would prevent future generations from changing the new status quo being sought. Ulysses meets Calhoun…

  2. Do you think that the states that ratified the Fourteenth Amendment (including incorporation) have an interest in seeing that it is properly enforced?

    I blogged about it here.

  3. Orin Kerr says:

    Josh makes a nice point, I think.

  4. JKM says:

    Excellent post. Thanks.