Patterico's Pontifications

2/8/2021

“Popular Constitutionalism”: Yeah, That’s a Hard “No”

Filed under: General — Patterico @ 8:29 am



NBC News has a piece by one of my favorite constitutional law professors, Steve Vladeck of my alma mater, the University of Texas School of Law at Austin. His arguments were a centerpiece of my recent newsletter (you should be subscribing!) which extensively argued the case for the constitutionality of the impeachment of (to use Colin Jost’s term) “former social media influencer Donald Trump.”

Prof. Vladeck’s NBC News piece argues that if senators cynically employ a clearly wrongheaded constitutional theory — such as the theory that only current officeholders can be convicted — voters should punish that act at the ballot box. So far so good.

But then Prof. Vladeck endorses a theory that I find very troubling: “popular constitutionalism.” I’ll quote Prof. Vladeck at some length here:

The central idea of “popular constitutionalism,” a school of thought most often associated with Stanford law professor Larry Kramer, is that there are circumstances in which the public does a better job of promoting constitutional values than the courts — even, perhaps counterintuitively, with respect to certain minority rights. Kramer’s work focuses on contexts in which the courts have adopted substantive interpretations of the Constitution at odds with either prevailing majoritarian sentiments or the preservation of individual rights. But the idea reverberates even more forcefully in contexts in which the Constitution sidelines the courts — in which the political branches don’t just have a word but, indeed, have the last word on the meaning of our founding charter.

Critically, the central virtue of popular constitutionalism is that it is directly democratically accountable — so that representatives who embrace constitutional positions at odds with the preferences of their constituents will, at least in theory, soon be replaced. So framed, the question isn’t just whether the public desires a particular substantive policy outcome; it’s whether the public supports the constitutional arguments underpinning that outcome. In a perfect world, then, members of Congress would be disincentivized from embracing weak constitutional arguments because they are weak. And it doesn’t matter that most Americans aren’t constitutional lawyers; popular constitutionalism embraces the notion that all of the people have a voice in giving content to the document — not just those who study and teach it.

I find this theory dangerous. My concern with this theory is that, taken to its extreme, it essentially would turn responsibility for interpreting the Constitution to the equivalent of YouTube commenters with the franchise. Have you seen the polls on hate speech lately — or for that matter, almost any free speech issue? These are the people to whom you want to surrender constitutional interpretation? That seems like a very bad idea.

I raised this issue with Prof. Vladeck on Twitter, and to my relief he somewhat qualified his support for the theory, at least when I compare his tweet to the language of his piece.

He does say in the piece that the argument for the theory “reverberates even more forcefully in contexts in which the Constitution sidelines the courts” — but, as I replied to him, I read the language of his piece as less qualified support for the theory. I am happy to see he too has reservations about embracing it entirely. And I do agree that senators who take the view that this impeachment is unconstitutional are wrong, and that citizens would be well within their rights to punish them at the ballot box for advancing this cynical and obviously incorrect view.

P.S. If you disagree with me about the constitutional arguments, make sure to read through my piece yesterday on it. If you like what you see, subscribe. The basic subscription is free, but there is bonus content– and there will be exclusive comment threads — for paid subscribers.

21 Responses to ““Popular Constitutionalism”: Yeah, That’s a Hard “No””

  1. former social media influencer

    I still prefer “President-Reject”.

    Dave (1bb933)

  2. If his point is “Elected officials whose discretionary interpretation of the constitution is rejected by the public will lose elections.” then it’s somewhat trivial.

    If it’s as you put it, that what the constitution means is open to populist interpretation, then it’s contrary to what the founders intended. But this is so obvious I can’t believe it’s what he meant.

    Time123 (f5cf77)

  3. I’ve been following Vladeck the last few months on the Twitter. Smart guy. Funny wife.
    Far as I know, the only way to get rid of a Senator is to vote him out, either by The People or by a two-thirds vote from his/her colleagues. From what I’ve seen, the latter only happens after said Senator is sentenced to prison.

    Paul Montagu (370b2e)

  4. There is a form of this that I’s support — an alternative method of amendment. If 3/4ths of the states pass identical resolutions of amendment within a 7-year period (with revocations allowed), the amendment becomes part of the Constitution.

    This is to replace the only-in-extremis convention option. Congress would still be able to begin the process itself, but would no longer be a roadblock to amendments that disfavored Congress.

    Kevin M (ab1c11)

  5. As for the public perceptions, had we solely relied on those, there would be no Miranda rights, and cops beating bad guys with rubber hoses would be perfectly OK (so long as they were, you know, bad guys).

    Kevin M (ab1c11)

  6. Far as I know, the only way to get rid of a Senator is to vote him out, either by The People or by a two-thirds vote from his/her colleagues

    There is the third way that Franklin pointed out, in situations where impeachment is impossible.

    Kevin M (ab1c11)

  7. As he has walked it back, he seems to be limiting it to unresolved or (particularly) non-justiciable issues. For example, should Trump be convicted and claim that the Senate had no power to convict him, the Courts would probably steer clear. The People, should they agree with Trump, would have the ultimate power to punish Senators at the ballot box.

    While I don’t think Trump will be convicted, that possibility and the assured appeal to the Supreme Court that would follow, is the main reason I see Roberts not officiating.

    Kevin M (ab1c11)

  8. Great topic. I think “popular constitutionalism” is really pitting the legislature against the “activist” courts. So, should abortion rights or gun rights be framed by elitist judges using any variety of interpretation schemes (perhaps just reading in their own predilections)….or should Congress…more forcefully….pull back jurisdiction and have a greater hand in crafting the boundaries of such rights? Courts are well positioned (practiced) at balancing competing interests….that’s kind of their job. Legislatures used to be about blended solutions but can be quite partisan, clearly favoring one interest over another…and let’s face it…be absolutely brazen about it.

    I tend to fear an activist legislature more than an activist Court….as Courts have traditional sided with liberty more than not. Courts also tend to take into consideration the will of the people, with a recent example being legalizing gay marriage. One could argue that they unnecessarily intruded upon federalism….though one could counter that it was the right decision and the culture was ready to accept it. I tend to like federalism.

    We live in a time where we seem to be politicizing the Court more and more….expecting judges to give us what we want…rationalizing bad Presidents who give us “good” judges. I wonder how long the tension can persist, with judges assuming more initiative when legislatures are frozen by partisanship. Rule by judges isn’t what we want either…just like it’s bad that administrative agencies are so powerful. We need a functional legislature….I’m just not sure how we get closer to one….

    AJ_Liberty (ec7f74)

  9. I’m with you here, Pat.

    That’s not popular constitutionalism. It’s just populism.

    Why would we suspect that voters views would go in the direction of supporting the constitution rather than tearing it down. If the populace has views contrary to the constitution wouldn’t the incentives for elected representatives also? (This is in fact the case I think. Republican senators largely know their arguments are bunk but don’t care because their voters don’t care.)

    nate (1f1d55)

  10. Dred scott. Plessy vs furgesen. Nuff said.

    asset (16c53f)

  11. @10, what are “Supreme court rulings that upset the Klan?” Alex.

    Time123 (c9382b)

  12. #6 Kevin M (ab1c11) — 2/8/2021 @ 10:39 am:

    Far as I know, the only way to get rid of a Senator is to vote him out, either by The People or by a two-thirds vote from his/her colleagues

    There is the third way that Franklin pointed out, in situations where impeachment is impossible.

    Members of Congress can’t be impeached.

    Rip Murdock (d2a2a8)

  13. 3. Paul Montagu (370b2e) — 2/8/2021 @ 10:12 am

    or by a two-thirds vote from his/her colleagues. From what I’ve seen, the latter only happens after said Senator is sentenced to prison.

    No, they sometimes pressure him into resigning.

    Examples: Bob Packwood or Al Franken. With Republicans you sometimes need the threat of expulsion.

    I just thought of an example of someone escaping a penalty by leaving office on his own. The penalty of loss of pension.

    Sammy Finkelman (5b302e)

  14. Totally unrelated, but important to those in Los Angeles County:

    Several of D.A. George Gascón’s reforms blocked by L.A. County judge

    A Los Angeles County Superior Court judge on Monday granted a petition sought by the union that represents county prosecutors that will bar Dist. Atty. George Gascón from implementing policies that would end the use of sentencing enhancements in thousands of criminal cases.
    …….
    The lawsuit takes particular issue with Gascón’s policy barring the use of sentencing enhancements for prior felony convictions, arguing that under California’s “three strikes” law, prosecutors do not have discretion “to refuse to seek the enhancement.”

    The ruling also bars Gascón from ordering prosecutors to dismiss special circumstances allegations in active cases that could result in a defendant being sentenced to life without parole, or any other enhancement in an active case unless they have legal grounds to argue doing so would be in the interest of justice. Since Gascón issued the directives in December, a number of judges had already been blocking such motions to dismiss on those grounds.

    There are 10,794 defendants with active cases in which sentencing enhancements are filed in L.A. County, according to statistics provided to The Times in response to a public records request.

    Gascón can still bar prosecutors from filing most sentencing enhancements in new cases, though enhancements for prior strike offenses must still be charged, according to the order.

    In his ruling, Judge James Chalfant blocked Gascón from ordering prosecutors to dismiss sentencing enhancements for prior strike offenses in active cases. Chalfant described Gascón’s policy as “unlawful” in his 46-page ruling.
    ……..

    Rip Murdock (d2a2a8)

  15. >>There is the third way that Franklin pointed out, in situations where impeachment is impossible.

    Members of Congress can’t be impeached.

    So, the other way.

    Kevin M (ab1c11)

  16. With Republicans you sometimes need the threat of expulsion.

    Bob Packwood was a Republican, for Oregon values of Republican.

    Kevin M (ab1c11)

  17. So, tommorrow’s trial is being carried on cable by CNN, MSNBC, Court TV, NBC News Now and ABC News Live but not Fox News, and on broadcast by by PBS, but not ABC, NBC, CBS or Fox. Probably not CE either, but that’s not available on my streaming service.

    Kevin M (ab1c11)

  18. *CW not CE

    Kevin M (ab1c11)

  19. Probably not [CW] either, but that’s not available on my streaming service.

    Kevin M (ab1c11) — 2/8/2021 @ 4:42 pm


    Of course not. It would cut into their Supergirl marathon. Priorities, man!

    Demosthenes (1d6f6c)

  20. It will probably be on some radio stations. Bloomberg is a possibility, as is NPR.

    Sammy Finkelman (ebcaa1)

  21. The trial will resume tomorrow, Wednesday, at 12 pm, with 4 days of up tp 8 hours worth of opening statements. (which can include video and quotations)

    Sammy Finkelman (e4c3a1)


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