Constitutional Norms—Erosion, Sabotage, and Response

• Published date: 01 June 2022
• Author: Gerald J. Postema
• Date: 01 June 2022
• DOI: http://doi.org/10.1111/raju.12345

Ratio Juris. Vol. 35 No. 2 June (99–122)

Constitutional Norms— Erosion,

Sabotage, and Response

GERALD J. POSTEMA

Abstract. This article explains the nature and constitutional role of norms and explores ways to

respond to the challenges they face, which threaten the viability of democracy. Constitutional

norms are informal unwritten rules embedded in the normative practices of officials and politi-

cal leaders. The effect of departures from constitutional norms depends on the seriousness with

which participants take responsibility for their practice. The article distinguishes norm infring-

ers, who depart from norms but do not intentionally challenge them; norm entrepreneurs, who

challenge the norm in hopes of reforming or replacing it; and norm saboteurs, who seek to deal

a deathblow to the norm or the constitutional system of which it is a part. Responses appropri-

ate to each kind of deviation are considered.

1. Introduction

Democracy depends on norms as well as law, and respecting established norms is essential in a diverse so-

ciety. The norms that get layered on top of laws are what enable groups with fundamentally different ideas

and objectives to live and work together. And if the past decade has taught us anything, it is that a politics of

abandoning norms to win today’s battle is mutilating our democracy. (Kramer2020)

In the popular press and in a vast amount of recent scholarship one finds deep

concern about the erosion or even the demise of democracy and the rule of law

around the world— in Hungary, Poland, Turkey, Brazil, Venezuela, the United

States, and several other countries. Leaders defiantly violate the norms that give

life to democratic institutions, with disastrous results for domestic and foreign

policy and for the democratic institutions themselves. Cause for this concern

came painfully to the attention of Americans and much of the world on January 6,

2021, when a mob violently stormed the United States Capitol and threatened the

lives of members of Congress in an attempt to overturn the results of the recent

presidential election.

In these countries, scholars argue, the degradation has resulted not from ap-

athy or indifference, but from hostile subversion of democratic institutions and

the values that they seek to serve. The attack can be stealthy (Varol2015). Unlike

their predecessors, contemporary aspiring authoritarians pay striking attention to

the forms of law (Sadurski2020, 63) in their efforts to consolidate and entrench

their power. They seek to preserve the constitutional frame while “hollowing out”

its substantive content and the constraints on their power that it seeks to impose

(Sadurski2019, 249).

© 2022 University of Bologna and John Wiley & Sons Ltd.

Gerald J. Postema

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Ratio Juris, Vol. 35, No. 2© 2022 University of Bologna and John Wiley & Sons Ltd.

They use various devices to achieve their antidemocratic aims. They use constitu-

tional amendment or legislation when they can, mobilizing artificial legislative ma-

jorities or manipulating weakened courts. Often, however, the assault is less direct,

if no less visible, attacking the soft underbelly of the constitutional order, the norm-

governed practices that give the constitution and institutions of government their

solidity, stability, and vitality. They target norms of government, including norms

of democratic lawmaking, seeking to change the constitution by changing constitu-

tional practice (Sadurski2020, 63).

While some react to such rampant norm- breaking with anxious hand- wringing

and political outrage, others respond with an indifferent shrug. After all, they say,

norms are nothing more than vestigial remains of hidebound ritual, arbitrary obsta-

cles to important political progress, or the last outpost of a sclerotic political estab-

lishment. Others argue that, at best, hand- wringing over norm- breaking misdirects

our political concern. “Let us hear no more of norms,” wrote one commentator;

President Trump’s actions were not mere violations of decorum. He took aim at deep

principles, not mere norms; in his contempt for these principles lies the real threat to

democracy (Gopnik2017).

Surely, deep principles are threatened; fundamental values of the rule of law, democ-

racy, and political equality are under concerted attack. Nevertheless, it is a mistake to

dismiss talk about norms. Respect for constitutional norms is essential to the integrity

and effectiveness of constitutional democracies, but these norms are fragile in ways that

we may not fully appreciate. Concern about sabotage of constitutional norms should be

at the very heart of our worry about the viability of democracy. My aim here is to explain

why and to think about ways of responding to the challenge such sabotage poses.

Concerns about the fragility of constitutional norms have come into focus recently

in a local debate in the United States over the constitution and future of the Supreme

Court. In the view of critics, the Republican Party over the last decade has pursued

a policy of capturing the courts, in hopes of securing their policies for the long term

against changes in the composition of Congress and occupant of the White House.

Several proposals for restructuring the Court have attracted attention in a climate

of extreme political polarization. Charges of violation of constitutional norms and

threats to democracy and the rule of law come from all sides of the debate. To grasp

what is at stake in this debate, it would be helpful pause to look again at these funda-

mental ideals and the nature and role of constitutional norms in a robust democracy.

Committed democrats recognize the central role of contestation in politics; in-

deed, they recognize that democracy itself is a contested concept. I sketch here a con-

ception of democracy that is, to my eye, compelling and widely accepted. Arguably,

it lies at the heart of the liberal democratic tradition. However, I will not attempt to

defend here it against more populist or strictly majoritarian conceptions that in sev-

eral countries have recently influenced popular understanding of its guiding ideals.

My aim, rather, is to show how this conception of our ideals might help us chart our

way through a highly charged partisan debate and how exploring that debate may in

turn enrich our understanding of those ideals.

2. Democracy and the Rule of Law

To begin, we must acknowledge the nature and moral demandingness of democracy.

Several key features of democracy deserve mention.