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Columbia Law School

2018

Administrative Law

Constitutional conventions

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How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen Jan 2018

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Faculty Scholarship

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 ...