We should expect a fair amount of discussion of the Constitution during this week's Senate impeachment trial of former President Donald Trump. After all, Trump's Senate brief raises at least four distinct constitutional objections to his potential conviction — whether a former president can even be tried, whether the chief justice has to preside, whether a president can be impeached for constitutionally protected speech and, if not, whether his speech actually was protected by the First Amendment.
Trump’s Senate brief raises at least four distinct constitutional objections to his potential conviction.
And unlike most constitutional disputes, in which resolution of those objections would ultimately be up to the Supreme Court, here, it's entirely up to the Senate — because the Supreme Court has held that courts have no role in supervising impeachment proceedings. Thus, even though the overwhelming consensus of constitutional scholars is that each of Trump's constitutional arguments is meritless, that's just not going to matter so long as 34 or more senators conclude otherwise, either because of genuine legal theorizing or, more likely, because they see the arguments as a useful way to avoid having to either condemn or condone Trump's misconduct leading up to and during the Jan. 6 insurrection.
But we shouldn't equate the Senate's procedural finality in the impeachment process with the conclusion that individual senators have the final say as to what the Constitution means. To the contrary, where the Constitution leaves specific questions to be resolved by the political branches (as it does with impeachment), the ultimate arbiters aren't the members of Congress, but rather their constituents. Unlike federal judges (who, by design, are not directly accountable to voters), senators can be replaced for taking positions to which their constituents object. And adopting weak constitutional arguments to let Trump (or anyone else) off the hook ought to be one of them.
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.
But as the separation of parties has increasingly taken precedence over the separation of powers in American politics, the relative strengths of constitutional arguments have taken more and more of a back seat to their bottom line. To take just one of many examples, it's now commonplace for members of Congress to hold radically different views about the constitutional scope of executive power depending on who the president is. The relative strength or weakness of the constitutional argument is irrelevant; all that matters is whether the argument allows the correct side to "win."
Standing on constitutional principle at the expense of partisan preferences is more politically dangerous, not the other way around. For some members, that risk is worth it; look no further than Republican Sen. Mitt Romney of Utah — the only senator in the three previous presidential impeachment trials to vote to convict a president from his own party.
It's easy to blame senators for not following Romney's lead — for not putting principle over party. Yes, these are hardly profiles in courage. But popular constitutionalism presupposes that we, the people, can and should hold our elected representatives accountable for not taking the Constitution seriously — for using it as a means to an end, rather than end unto itself. Part of that equation is that it is therefore also our responsibility when our elected representatives subvert the Constitution. And so if, as seems likely, Trump is acquitted by the Senate, it will be as much the fault of senators' constituents as it will be of the senators themselves.
There's a famous anecdote about a question that Philadelphia socialite Elizabeth Willing Powel put to Benjamin Franklin at the end of the 1787 convention that produced the Constitution. Powel asked Franklin whether the founders had created a republic or a monarchy, and Franklin famously replied "a republic, if you can keep it." We spend a lot of time dwelling on Franklin's reference to a "republic" and what it says about the style of our democracy. We spend nowhere near enough time reflecting on the obligation he conveyed — to all of us — to "keep it."