The Role of Norms in Our Constitutional Order.

• Author: Whittington, Keith
• Position: Thirty-Ninth Annual National Student Symposium

We have given more attention to the issue of norms recently (1)--maybe specifically during this administration--than we have previously. But I think it is high time that we pay attention to norms.

They are an essential part of how our constitutional system works in general, but they tend to be under-analyzed. We do not pay as much attention to them as we should, nor do we have good tools for thinking about them. Moreover, I do not believe we even have very good tools for identifying them.

So this is a useful moment for us to try to grapple with the fact that the Constitution vests a great deal of discretion in government officials of all sorts, (2) and that norms are part of the process--part of the sub-constitutional sets of practices and rules--by which we make the constitutional system operate effectively, despite the fact that it entrusts vast discretion to government officials.

The phrase "norms" encompasses a great deal of different kinds of activities that qualify as part of these sub-constitutional sets of practices. We might think of some norms as being purely a matter of informal practice, but we might imagine others that get institutionalized to some degree. For example, we might imagine some rules about professional practice, like the Senate filibuster or how the House committee system works, as being similar to a norm, even though they are in fact entrenched in a set of rules.

They are part of the sub-constitutional set of practices that regulate how government officials conduct business within the terms of the Constitution, and we think they serve very important functions and do important work within the constitutional system. Some of them may be built into statutes, and so there is a host of framework statutes that are particularly important to how the government operates more generally. And these rules might serve those similar functions of norms as well.

One of the challenges, though, particularly when we consider informal norms-- those that are not built into some kind of regularized sets of rules or practices--is recognizing what they are so that we know when a norm violation has occurred and whether or not we ought to be concerned about it. At the very least, norms are part of a regularized set of behavior, and so an outside observer watching a political system may be able to infer that there is a norm based on how people are behaving.

But identifying a routine practice, by itself, probably is not sufficient to identify a norm. For example, it has become the regular practice of recent Presidents to only nominate people to the U.S. Supreme Court who have some prior judicial experience before that nomination is made, largely people who have gone to Harvard and Yale Law School, and, in many cases, who have gone to Princeton University as undergraduates. (3) It is hard to imagine that practice as being a norm. If a President decided not to follow that regularized practice, but instead chose as a judicial nominee to the Supreme Court someone who had not gone to Harvard Law School but in- stead went someplace else, or if the nominee had not had prior judicial experience, we might think the President had made a nomination that was more or less wise. However, we would be unlikely to think that the President had abused the public trust or subverted the workings of the political system. We might not necessarily think it is a norm violation but rather a break from routine practice.

So that raises questions about when a routine practice is a norm versus a change in routine behavior such that we worry if government officials deviate from it. Sometimes this is a function of breaking regularized practices, which might signal something about a norm being changed. Other times, though, it is less true.

For example, early in the Trump administration, President Trump was criticized for the fact that he maintained his personal Twitter account, (4) raising questions of whether there is some kind of norm that the President should not have personal social media accounts they continue to use while in office. President Trump famously, and in all caps, blasted on Twitter that his use of social media is "MODERN DAY PRESIDENTIAL." (5) He behaves differently than other Presidents have, and among the modern-day features of his presidency is that he will use a Twitter account in a personal capacity.

We do not have a long practice that tells us Presidents should not do that kind of thing. And so we are constructing norms on the fly as to whether it is okay to have a personal Twitter account. If it is okay for a President to have a personal Twitter account, how should he use that Twitter account? What kind of behavior on that Twitter account might be acceptable? And those expectations are going to change over time, and it is a challenge to try and determine when we know that the kind of norm has been established and when we do not.

Part of what also complicates thinking about when norms have occurred is that we recognize there are likely to be exceptions to...