Nurturing Conventions?

The idea of constitutional conventions, familiar in the Commonwealth since the times of A.V. Dicey, has recently been attracting some attention from American scholars. Gerard Magliocca is apparently using it in a forthcoming article. And, most recently, it appears in an intriguing guest-post by Miguel Schor at Balkinization. Prof. Schor argues that conventions are important ― an obvious point to us, but not to Americans, who tend to conflate the constitution and “the Constitution,” i.e. the written constitutional texts (and, maybe, judicial interpretations of that text). He uses the example of what he suggests was a convention that prevented Congress, or a political party in Congress, from using the statutory debt limit (and the threat of default) from extracting policy concessions from the President or from partisan opponents.

Prof. Schor then suggests that

[t]he supposed wall between the Constitution and politics means that the Supreme Court [of the United States] lacks the intellectual tools to play a constructive role in buttressing the political conventions necessary for democratic politics to flourish

― for example, by intervening to stop partisan gerrymandering. In his view,

[t]he [Supreme] Court should seek to nurture the emergence of conventions that facilitate political competition. To that end, we, as scholars and teachers of constitutional law, need to find a way to educate law students about the importance of political conventions.

Now I’m all for talking talking about constitutional conventions as much as possible. Most of my published output so far does just that. And I agree that courts ― not only in the United States, but also in Canada (and elsewhere in the Commonwealth) ― seem to lack the intellectual resources to deal effectively with the political dimensions of conventions; in my article about the “Jurisprudence of Constitutional Conventions,” I attempted to supply some such resources. (The journal’s copyright terms prevent me from posting the actual paper on SSRN. I am happy to share it with those interested though.) However, I am skeptical of the idea that courts can “nurture the emergence of conventions,” whether intended to facilitate political competition or to further some other constitutional principle.

Constitutional conventions are entirely the creatures of politics. As Fabien Gélinas and I put it in a recent article,

[c]onventions are rules of political practice, which emerge when the rules of constitutional law are not or are no longer in accordance with, or sufficient to give full effect to, “the prevailing constitutional theory” or values. Faced with a discrepancy or a gap between law and constitutional values, political actors work out solutions that enable them to give effect to the latter without openly contravening the former. As the solution adopted by one political actor is imitated by that actor’s successors, expectations that it will be similarly imitated in the future develop, with each precedent reinforcing these expectations. The combined forces of the values to which the practice gives effect and of the expectations that it will be followed make it binding. Constitutional conventions are indeed the pearls of the constitution, formed as the mollusk of the political process responds to the irritant of inadequate law or to the stimulus of a deliberate political decision, by enveloping it in layer after layer of the protective coating of precedent, until its very existence might be forgotten except by those who know that it must once have been there.

What this means is that courts cannot really “nurture” a convention in its infancy. It will crystallize depending on the political actors’, not the judges’ choices. At most, a judicial decision can supply, as we put it, the “irritant” that will cause a convention to appear, by pointing out to the political actors the state of the law which they will regard as unacceptable in light of the “constitutional theory” or values of the time.

However, what courts could ― but refuse to ― do, however, is enforce an already developed convention. Now, maybe that is what prof. Schor actually means, but to me “nurture” and “enforce” sound like very different things. One nurtures something that is not yet fully mature. But for a court to be able, even if it is willing, to enforce a convention, the convention has to have reached a (considerable) measure of maturity. Indeed, there are dangers in overhasty judicial enforcement of conventions. One is the risk of uncertainty of an unsettled convention. The skeptics of judicial enforcement of conventions, from Dicey on, have always insisted that conventions are not sufficiently certain to provide meaningful legal standards. As I explain in the “Jurisprudence of Constitutional Conventions” article, I think that this is not always so, but this point is surely more powerful with respect to emerging conventions than to stable ones. Judicial intervention in the field of convention carries another risk too, that of preventing political practice from adjusting to the unsettled needs or changing “constitutional theory” of the day. By enforcing a convention too soon, a court may prevent it from accomplishing its function of making constitutional norms correspond to the prevailing constitutional values. 

Prof. Schor’s call on courts to nurture constitutional conventions thus seems to me at odds with their true nature. However, more academic ― and judicial ― engagement with conventions in the United States would be very interesting.

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