Sunday, January 21, 2018

Political Norms, Constitutional Conventions, and President Trump

Neil Siegel

With the federal government shut down and President Trump calling for an end to the Senate filibuster as to legislation, it is a good time to think about political norms and conventions.

Over the first year of the Trump Presidency, it has become commonplace for reporters, legal academics, and political scientists to note and condemn President Trump's many violations of norms and conventions that had previously guided and restrained presidents of both political parties in the exercise of their discretion. Those efforts to observe and criticize are vital. They seek not only to educate the public about the persistent abnormality of the President's conduct, but also to sanction the president's breaches of the relevant norms and conventions.

Those two terms -- "norms" and "conventions" -- have tended to be used interchangeably; there has not been much discussion of the ways in which norms and conventions are alike, the ways in which they are different, and which conduct of the President arguably violates one or the other. In a new essay entitled Political Norms, Constitutional Conventions, and President Donald Trump, I seek to do some of that work. I argue that conventions find their conceptual space between political norms on the one hand and the game theoretic "equilibria" studied by political scientists on the other hand. "Constitutional conventions," I further suggest (following scholars drawing from the Commonwealth legal tradition), are special kinds of conventions in that fidelity to them helps vindicate particular purposes of the Constitution.

I also catalogue the President's violations of various norms and conventions. But that part of the essay compiles a partial list that became dated almost as soon as I completed each draft. It does, however, raise some intellectually interesting questions of proper categorization.

Here is the abstract:

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal role in sustaining the Constitution. Part I discusses political norms and constitutional conventions, including how they are alike, how they are different, and why they matter in the United States notwithstanding the existence of a written constitution. Part II substantiates this Essay’s claim that President Trump has consistently disrespected numerous political norms and constitutional conventions. The Conclusion suggests that the jury is still out on how successful President Trump will be in eroding political norms and constitutional conventions.

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