Law Commons^™

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort to study constitutional …

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, …