Document Type
Article
Publication Date
2018
Keywords
Trump administration
Disciplines
Constitutional Law | Law and Politics
Abstract
From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.
This Article calls attention to that latent instability and, in so doing, begins to taxonomize and theorize the structure of constitutional norm change. We explore some of the different modes in which unwritten norms break down in our constitutional system and the different dangers and opportunities associated with each. Moreover, we argue that under certain plausible conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. This somewhat paradoxical argument suggests that many commentators have been misjudging our current moment: President Trump's flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex deterioration of norms underway in other institutions.
Recommended Citation
Chafetz, Josh and David E. Pozen, "How Constitutional Norms Break Down," 65 U.C.L.A Law Review 1430 (2018)
Comments
This Article was prepared for the UCLA Law Review’s February 2018 symposium on The Safeguards of Our Constitutional Republic and was also presented at a Duke Law School roundtable on “Constitutional Conventions in the United States and Commonwealth Countries.”