Lawfare Archive: Jonathan Gould on Codifying Constitutional Norms
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 26 December 2022
⏱️ 41 minutes
🧾️ Download transcript
Summary
From March 23, 2021: 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.
Support this show http://supporter.acast.com/lawfare.
Hosted on Acast. See acast.com/privacy for more information.
Transcript
Click on a timestamp to play from that location
| 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. |
| 0:39.4 | I'm Will Appleton with an episode from the LawFair archive for December 26, 2022. |
| 0:46.2 | In 1973 to avoid a growing scandal over his finances, President Richard Nixon released his |
| 0:51.9 | tax returns from 1969 to 1972. |
| 0:56.1 | At this point, with every success of President, except for one Donald Trump, the voluntary |
| 1:00.8 | release of a presidential candidate's tax returns has been the norm. |
| 1:05.0 | But norms are just that, and they don't carry the weight of law behind them. |
| 1:08.9 | For today's archive episode, I picked an episode from March 2021. |
| 1:13.6 | In the episode, Alan Rosenstein sat down with Jonathan Volt to discuss the importance and |
| 1:18.2 | erosion of constitutional norms, had a best repair them, and the potential unintended consequences |
| 1:24.5 | of committing unwritten norms to legislative language. |
| 1:31.5 | I'm Alan Rosenstein, and this is the LawFair podcast, March 23, 2021. |
| 1:38.4 | What is our constitutional system? |
| 1:40.9 | Most obviously it's the written document, and it also includes the two and a half centuries |
| 1:45.6 | of judicial decisions interpreting it. |
| 1:48.2 | But these two things, text and case law only scratch the surface. |
| 1:53.1 | Equally important are constitutional norms, the unwritten rules that govern how actors |
| 1:57.6 | in our political system behave. |
... |
Please login to see the full transcript.
Disclaimer: The podcast and artwork embedded on this page are from The Lawfare Institute, and are the property of its owner and not affiliated with or endorsed by Tapesearch.
Generated transcripts are the property of The Lawfare Institute and are distributed freely under the Fair Use doctrine. Transcripts generated by Tapesearch are not guaranteed to be accurate.
Copyright © Tapesearch 2026.