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.
I think you're overreading the piece to suggest that the people should interpret the Constitution *in lieu of* the courts. My only point here is that, in cases in which courts have *no* role, it's the people, not their representatives, who realistically have the last word.
— Steve Vladeck (@steve_vladeck) February 8, 2021
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.