Jonathan Gould on Codifying Constitutional Norms
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 23 March 2021
⏱️ 41 minutes
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Summary
Our constitutional system involves the written document, plus two and a half centuries of judicial decisions interpreting it. But these two things only scratch the surface. It also involves our constitutional norms, the unwritten rules that govern how actors in our political system behave. For decades, commentators have observed the steady erosion of many of these norms, and in the four years of the Trump administration, the trickle of norm violations became a torrent. As a response, many in academia, the media and politics have called for Congress to pass legislation that would codify what had previously been unwritten norms of behavior, from requiring that presidential candidates disclose their tax returns to limiting the president's pardon power.
In a forthcoming article in the Georgetown Law Journal, Jonathan Gould, assistant professor of law at the University of California, Berkeley, analyzes many of these proposals and points out the potential unintended consequences of trying to commit unwritten norms to legislative language. Alan Rozenshtein spoke with Jonathan about the importance and erosion of constitutional norms, especially within the executive branch, and how best to repair them.
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Transcript
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| 0:00.0 | The following podcast contains advertising to access an ad-free version of the LawFair |
| 0:07.2 | podcast become a material supporter of LawFair at patreon.com slash LawFair. |
| 0:14.7 | That's patreon.com slash LawFair. |
| 0:18.2 | Also, check out LawFair's other podcast offerings, rational security, chatter, LawFair |
| 0:25.6 | no bull and the aftermath. |
| 0:34.2 | In some other constitutional systems, we think of constitutional norms and constitutional |
| 0:39.0 | law as complementary. |
| 0:41.2 | So in places that have either no written constitution or only a kind of a minimally written constitution, |
| 0:46.9 | think you're about the UK or Israel, there is set of norms that complement kind of the |
| 0:53.8 | constitution. |
| 0:54.8 | We think of the norms as part of constitutional law. |
| 0:57.4 | Whereas here in some ways constitutional law and constitutional norms are not compliments |
| 1:02.2 | but are supplements that constitutional norms do things that statutes can't do. |
| 1:08.6 | I'm Alan Rosenstein and this is the LawFair podcast March 23rd, 2021. |
| 1:15.6 | What is our constitutional system? |
| 1:18.2 | Most obviously it's the written document and it also includes the two and a half centuries |
| 1:22.8 | of judicial decisions interpreting it. |
| 1:25.4 | But these two things, text and case law only scratch the surface. |
| 1:30.4 | Equally important are constitutional norms, the unwritten rules that govern how actors |
| 1:34.9 | in our political system behave. |
| 1:37.4 | For decades now, commentators have observed the steady erosion of many of these norms. |
| 1:42.4 | And in the four years of the Trump administration, the trickle of norm violations became a torrent. |
... |
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