Constitutional Norm Entrepreneuring

Abstract

Everyone is obsessed today with constitutional norms. They have powerfully penetrated our vocabulary and are mentioned with dizzying frequency. We now know that any account of our valuable constitutional practices cannot end with just politics or law and must also include norms. What is further unique about the current moment in our political era is that an important subset of these norms appears to be exceedingly fragile and is under persistent attack. Some even suggest that the erosion of constitutional norms is at the heart of a global trend of democratic recession. But how precisely do constitutional norms change and ultimately collapse? And is there something actors can do to influence these processes?

This Article’s goal is to explore these questions, both in general and in the context of the alleged trend of democratic recession in particular. It argues that although norms can be understood, following H.L.A Hart, as a “primitive” component in our political systems (given the way they differ from formal law), constitutional norms can in fact attain some of the credentials Hart believed could be attributed exclusively to law. More specifically, the Article claims that we can fashion something akin to “rules of change” and “rules of adjudication” in relation to constitutional norms and accordingly gain a firmer grasp of how they develop, change, and ultimately break down and of how conflicts about constitutional norms are “adjudicated” within our politics. As for “rules of change” for norms, the Article argues that constitutional norms tend to change in predictable ways and as a result of the working of several distinctive mechanisms. As for “rules of adjudication” for norms, the Article identifies a set of concrete strategies that constitutional norm entrepreneurs (who wish to change present norms including bringing forth their demise) and constitutional norm anti-preneurs (who wish to safeguard present norms) can use to try to manipulate constitutional norms to achieve their desired, and oppositional, ends.

The Article concludes by implementing that framework to our present moment of democratic recession. It asks, in other words, what constitutional norm anti-preneurs can do to halt further encroachment upon valuable constitutional norms that appear crucial to the resilience of democratic systems, both in general and in the United States.

Keywords: Constitutional Law, Norms, Conventions, Constitutional Retrogression, Legal Theory