Codifying Constitutional Norms

59 Pages Posted: 22 Jan 2021

See all articles by Jonathan Gould

Jonathan Gould

University of California, Berkeley - School of Law

Date Written: January 19, 2021

Abstract

Ours is an era of fraying constitutional norms. Norms that long governed the conduct of elected officials have been violated by the White House, in Congress, and in the states. In the face of threats to constitutional norms, some have proposed codifying constitutional norms—that is, enacting their content into law.

This Article examines the dynamics around codifying constitutional norms. It begins by showing that codification efforts face both practical and legal barriers. Practically, it can be hard to define the precise contours of a constitutional norm and hard to codify a norm in a polarized political environment. Legally, constitutional law precludes Congress from codifying many of the most important constitutional norms.

The Article then shows that codifying constitutional norms can have significant potential benefits, but that codification is not without costs. Codification can make it possible to enforce norms in court, holding the promise of greater compliance, but codifying some norms risks crowding out or undermining others. Codification can provide settlement in the form of clarity and stability, but with that settlement comes the risk of ossification and the loss of flexibility. Codification also involves courts in determining the meaning of constitutional norms, a prospect that can aid in enforcement but also holds the risk of courts distorting codified norms.

Finally, the Article contends that understanding the benefits and costs of codification provides insight into when and how codification is appropriate. The desirability of codification will depend on the institution doing the codifying and the legal vehicle being used for codification. Codification will be more appropriate for rule-like norms than for standard-like norms. Codification through soft law or rules internal to a branch of government may sometimes be superior to codification via a judicially enforceable statute. And norms can be protected indirectly, rather than through directly codifying their content. Even when codifying norms is possible and advisable, however, codification cannot serve as a substitute for better politics.

Keywords: Norms, Constitutional Norms, Codification

Suggested Citation

Gould, Jonathan, Codifying Constitutional Norms (January 19, 2021). Georgetown Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3769465 or http://dx.doi.org/10.2139/ssrn.3769465

Jonathan Gould (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://https://www.law.berkeley.edu/our-faculty/faculty-profiles/jonathan-gould/

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