Codifying Constitutional Norms

Abstract

Ours is an era of fraying constitutional norms. Norms that long governed the conduct of public officials have in recent years been violated by the White House, in Congress, and in the states. In the face of threats to constitutional norms, some have proposed codifying constitutional norms—that is, enacting their content into law. This Article examines the dynamics around codifying constitutional norms. It begins by showing that codification efforts face both practical and legal barriers. Practically, it can be difficult to define the precise contours of a constitutional norm and to codify a norm in a polarized political environment. Legally, constitutional law precludes Congress from codifying many of the most important constitutional norms. The Article then shows that codifying constitutional norms can have significant potential benefits, but that codification is not without costs. Codification holds the promise of promoting greater compliance with norms, typically by making them legally enforceable, but codification can have unintended consequences and in some cases may actually weaken norms. Codification can clarify and stabilize norms that might otherwise be vague or unstable, but codification also risks ossifying norms by denying them the ability to evolve. And codifying a norm can shift power among institutional actors, including by giving courts a role where they previously had none. Finally, the Article contends that understanding the benefits and costs of codification provides insight into when and how codification is appropriate. The desirability of codification will depend on the institution doing the codifying and the legal vehicle being used for codification. Codification will be more appropriate for rule-like norms than for standard-like norms. Codification through soft law or rules internal to a branch of government may sometimes be superior to codification via a judicially enforceable statute. And norms can be protected indirectly, rather than through directly codifying their content. Even when codifying norms is possible and advisable, however, codification cannot serve as a substitute for better politics.