Chafetz & Pozen on the Breakdown of Constitutional Norms

Josh Chafetz (Cornell Law School) & David Pozen (Columbia University – Law School) have posted How Constitutional Norms Break Down (UCLA Law Review, Forthcoming) on SSRN.  Here is the abstract: 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 that limit their capacity to constrain the conduct of government officials. This Article calls attention to that latent instability and, in so doing, begins to taxonomize and theorize the structure of constitutional norm change. We…

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