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Full-Text Articles in Law
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, …
Judicial Elections As Popular Constitutionalism, David E. Pozen
Judicial Elections As Popular Constitutionalism, David E. Pozen
Faculty Scholarship
One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.
This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …