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Full-Text Articles in Law
The Shrinking Constitution Of Settlement, David E. Pozen
The Shrinking Constitution Of Settlement, David E. Pozen
Faculty Scholarship
Professor Sanford Levinson has famously distinguished between the "Constitution of Settlement" and the "Constitution of Conversation." The former comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation. The latter comprises those aspects that are subject to ongoing litigation and debate. Although Americans tend to fixate on the Constitution of Conversation, Levinson argues that much of what ails our republic is attributable, at least in part, to the grossly undemocratic and "decidedly nonadaptive" Constitution of Settlement.
This Article, prepared for a symposium on Levinson's coauthored book Democracy and Dysfunction, explains that the Constitution of …
How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen
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, …