Constitutional Norms--Erosion, Sabotage and Response

Abstract

Respect for informal norms is essential to the integrity and effective functioning of constitutional democracies. Such norms have remarkable resilience but also are fragile in ways that we may not fully appreciate. Concern about sabotage of constitutional norms lies at the very heart of current widespread worries about the viability of democracy. This article seeks to explain the importance of constitutional norms and sources of their resilience and fragility, and to explore ways of responding to challenges that threaten their viability. After sketching a familiar and compelling conception of democracy and the rule of law, this article analyzes the nature of the social norms underlying democratic constitutions arguing that they are rooted in fundamentally discursive normative practices. It distinguishes three types of challenges to norms—those of norm infringers, those of norm entrepreneurs and those of norm saboteurs—and a repertoire of responses defenders can deploy against such breaches. The main principles of the analysis and articulated responses to norm sabotage are illustrated in an extended discussion of the recent highly partisan debate in the United States over reform of the Supreme Court.

Keywords: constitutional norms, conventions, court reform, court packing, democracy, democratic erosion, norm entrepreneur, norm saboteur, normative practice, rule of law, social norms, unwritten constitution