Top-Down Constitutional Conventions
(2018) 81 Modern Law Review 765
34 Pages Posted: 22 Mar 2019
Date Written: April 27, 2018
Many scholars think that all conventions of the constitution emerge from the bottom up, out of the practices of constitutional actors. Here we develop the first systematic account of conventions that are imposed from the top down, through prescriptions by constitutional actors. We show that ‘top-down conventions’ (as we term them) can be created through the use of normative rule-making powers; that powers of the right kind are sometimes conferred by ‘bottom-up conventions’; that these powers are often exercised; and, as a result, that top-down conventions are increasingly common. We show, too, that as the formal, systematic, and intentional products of a small number of constitutional actors, top-down conventions are a potentially illegitimate form of constitutional regulation.
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