Constitutions as Self-Restraint

I’m a bit late to the party on this, but Marco Rubio, the Republican senator from Florida, recently offered one of the more strained arguments against an impeachment trial for former President Trump. It would be, he said the weekend before last, “arrogant” to disqualify Trump from running for office again. “Who are we to tell voters who they can vote for in the future?”

Rubio mistakes not just the impeachment power but also the nature of constitutional government itself. Written constitutions place all manner of restraints on the people. Try Rubio’s argument from the opposite side. Consider, hypothetically, an individual mandate to purchase health insurance that a majority of the people’s elected representatives support but for which conservatives believe there is no constitutional authority. Who are we to tell the people what legislation they can enact?

The purpose of constitutional restraints is not to tell the people what they cannot do. Madison thought that was impossible: One of his most important contributions to democratic theory was the limiting condition that the people always get what they want sooner or later. Constitutional constraints seek to channel the public will to improve the odds that it will be deliberate and reasonable.

Rubio’s complaint was, in that sense, not against impeachment but against constitutionalism. But its most fundamental error was the source of constitutional constraints. The Constitution is an exercise of the power of self-restraint. The people, knowing they are prone to error, agree to limits on their immediate will in order to promote their ultimate good. This was among the reasons it was important to Madison that the Constitution be ratified directly by the people of the states, not the states as corporate bodies.

In constraining themselves, the people act both freely and with humility. By contrast, Rubio purports to protect the people by describing senators — the “we” of his “who are we” question — as somehow apart from the people, restricting their will. What was that about arrogance?

2 thoughts on “Constitutions as Self-Restraint

  1. Amplifying Greg Weiner’s point, how arrogant is it to denigrate the will of the constitutional people, the people in their sovereign capacity, who provided in their Constitution that the Senate have the responsibility to determine whether a president convicted of impeachment should be disqualified from future office? How arrogant is it for Senator Rubio to, if effect, disavow his two oaths to follow the Constitution and to do impartial justice on behalf of the Constitution’s people?

    1. Jeff’s point about the people acting in their sovereign capacity is crucial. Federalist 78 explicitly equates the Constitution with the will of the people. That is why it outranks ordinary legislation.

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