A THEORY OF CONSTITUTIONAL NORMS.

• Author: Ahmed, Ashraf

Table of Contents Introduction I. Understanding Norms: Current Approaches A. 1. Strategic Approaches 2. Democratic Alarmism 3. Thick Institutional Description B. The Need for a General Theory II. What Makes a Norm Conventional? A. Coordination B. Constitution C. Features of Norms 1. Normativity 2. Contingency 3. Arbitrariness III. Constitutional Norms A. When Is a Norm Constitutional? B. Constitutional Norms vs. Law IV. Norms at Work A. Blue Slips for Judicial Nominations B. Anti-Court-Packing C. Executive Noninterference in the Department of Justice Conclusion Introduction

The political convulsions of the past decade have fueled acute interest in constitutional norms. Also known as "conventions" or "customs," constitutional norms are common and recognizable. For example, from 1937 to the present, neither of the political branches has attempted to enlarge the size of the Supreme Court beyond nine justices. (1) Similarly, presidents have, since the Founding, appointed principal officers during both intra- and inter-session Senate recesses and have not, until recently, interfered with agency adjudications or directed criminal investigations from the White House. Each of these practices constrains government officials, yet enjoys, at best, shallow textual foundations. Their prominence suggests that the Constitution in action is composed of, and sustained by, more than just the law on the books. Norms, in other words, form a central part of the "constitutional order": the broader "set of rules, doctrines, and practices that structure political decisionmaking." (2) Norm erosion, already a scholarly concern, accelerated during the Trump presidency, and public alarm about the future of democracy became routine. (3) Although often associated with political and legal liberals, these anxieties have a conservative cast, as they reflect a commitment to the status quo and conviction about what interbranch comity or the rule of law should look like. (4) The same preservationist instinct drives interpretive theories that transform historical practice into constitutional law. (5) And in four different cases during its October Term 2019, on issues ranging from agency structure (6) and the electoral college, (7) to the constitutionality of state (8) and congressional subpoenas, (9) the Supreme Court relied on past practice in precisely this way.

Such intense attention makes it all the more peculiar that we lack a general account of constitutional norms. This is not to say we lack definitions; we have many. Consider several leading ones:

* "Conventions" are "maxims, beliefs, and principles that guide officials in how they exercise political discretion." (10)

* "Structural norms" are "unwritten or informal rules that govern political behavior" that "insulat[e] certain types of decisions from certain types of actors; [] limit[] self-dealing or ... corruption ...;

[] structur[e] decisionmaking to make it less arbitrary; [] allocat[e] authority among the different branches ...; and [] structur[e] the role of politics in governance." (11)

* "Conventions are, at bottom, equilibria of mutual expectations among political actors and institutions." (12)

* Constitutional norms are "sanction-based" practices that "regulate ... the relation between the main branches of government, their prerogatives, and the limitations on their powers." (13)

These definitions are incomplete and inadequate because they do not answer at least one or more of three major questions. First, if norms or conventions play so many different roles in a constitutional order, is there something they all must do? Second, what, aside from informality, makes them conventional? Or are they just catch-all terms for non-legal rules? Third, what makes these practices constitutional?

This Article advances an original theory of constitutional norms that answers these questions. It defines them and explains their general character: they are normative, contingent, and arbitrary practices that implement constitutional text and principle. This definition is simple but powerful. It identifies a constitutional norm's salient features, its basic function, and its relationship to the Constitution. And it expands on and distills intuitions either absent from or present but submerged in existing accounts. Drawing on this definition, this Article not only clarifies a fundamental aspect of the constitutional order, it also reveals deep tensions in the use of historical practice in constitutional interpretation.

The Article proceeds as follows. Part I critiques the recent literature on constitutional norms. In many precincts of the legal academy, the importance of norms has long been recognized. Private law scholars, for instance, have emphasized the ways that norms (or conventions as they are more often known in private law scholarship) help coordinate behavior in contracts, family law, and criminal law. (14) And for legal positivists--the dominant school of contemporary jurisprudence--law itself is grounded in convention. H.L.A. Hart famously placed conventions at the heart of modern legal systems, (15) and many of his successors have remained committed to the same conventional approach. (16) American constitutional law scholarship, by contrast, has given conventions sporadic attention. While the British jurist A. V. Dicey observed nearly a hundred fifty years ago that conventions accompanied written and unwritten constitutions alike, (17) the existence of norms or conventions is, as Adrian Vermeule wryly noted, a "revelation" that "bursts upon American constitutional scholars every other generation or so, and is lost in the succeeding generation." (18)

The current renaissance in norm scholarship, Part I argues, has taken three forms: strategic approaches, democratic alarmism, and thick institutional description. Each comes with characteristic limits. Strategic approaches embrace a game-theoretic view of constitutional norms that narrowly focuses on their role in coordinating the behavior of governmental agents. Democratic alarmists defend the necessity of norms but often ahistorically and without marking the boundaries between political and constitutional norms. And thick descriptivists offer rich accounts of norms within particular branches yet stop short of a broader definition. As a result, the existing literature lacks a general theory of norms that explains their functions, features, and relationship to the Constitution.

This Article addresses these issues by adopting a different strategy from current approaches. While recent work is uniformly inductive--it begins by describing examples of norms and then tries to distill their essence--this Article is primarily deductive. It treats the question "what is a constitutional norm?" as two separate inquiries. First, what makes a constitutional norm or convention (indeed, any social practice) conventional? (19) Second, what makes it constitutional? This strategy has important advantages over a more inductive approach. Focusing on particular examples can obscure what they share with conventions more generally; an exclusively inductive approach thus risks exceptionalism about constitutional norms, exaggerating their distinctiveness and inviting alarm when they begin to change or fade. Inductive approaches also lack specific criteria for identifying when a norm is constitutional. This problem flows downstream from confusion about conventionality. Explaining why a constitutional norm or convention is conventional provides an antecedent conceptual framework in which to place constitutionality. In this view, a constitutional convention is a convention first, constitutional second.

Part II explains what makes a norm or a convention conventional. Drawing on the philosophy of social conventions, this Part lays out what conventions do and what their common features are. Conventions generally fall into two categories: they either coordinate action or concretize values into practices. Coordinating conventions are famous; a familiar example is a rule requiring drivers to stick to one side of the road. Until now, scholars have either assumed that constitutional norms are coordinating conventions or have foregone asking what makes them conventional at all. (20) Both approaches are mistaken. Constitutional norms are always constitutive conventions. Just as the conventions of etiquette concretize the concept of "politeness," constitutional norms implement otherwise abstract principles, like the separation of powers, or indeterminate text, such as "advice and consent," into specific practices. Norms translate constitutional word into deed. The complete absence of constitutive conventions in recent work is therefore notable since constitution, much more so than coordination, helps make sense of what norms do in constitutional politics and why change provokes turmoil. (21)

Understanding what norms do--concretizing values into practices--illuminates their key features. First, these practices, as their names suggest, are normative. By operationalizing constitutional text and principle, norms command respect and allegiance. And because constitutional norms are constitutive conventions, they are normative in a thicker sense than coordinating conventions; norms are not, or are not just, rules that meet functional needs, but rather practices that create the terrain of constitutional morality. (22) A given era's constitutional norms reflect how people think constitutional text or principles should work.

Second, norms are contingent. If and when a norm emerges and how long it survives depends on a variety of historical forces. As others have observed, "constitutional norms are perpetually in flux." (23) Because they are both weaker than law and depend on various intellectual, political, and social conditions for their survival, constitutional norms are inherently provisional.

Third, and most importantly, constitutional norms are arbitrary. A given...