Constitutional Conventions Roundtable

February 5, 2018Duke Law News

Constitutional Conventions in the United States and Commonwealth Countries

Friday, March 2
Room 3000 | ALL DAY
Duke Law School

This roundtable will consider a variety of issues concerning “constitutional conventions”—that is, norms of political morality that serve a constitutional purpose but do not necessarily have legal status. Constitutional conventions have long been considered an important part of the constitutions in Commonwealth countries and have been the focus of eminent writers such as A.V. Dicey.  There has been significant and ongoing debate in such countries about, among other things, the precise definition of constitutional conventions and their relationship to constitutional law. American legal scholars often overlook the existence of constitutional conventions in the United States, but such conventions have long played an important role in this country as well.  Many generations ago, Herbert Horwill of Oxford University attempted to catalogue the U.S. constitutional conventions.  In recent years, there has been a revival of interest in constitutional conventions in the United States, although most American constitutional law scholars continue to ignore them. U.S. constitutional conventions today might include, to name a few examples: the norm against altering the size of the U.S. Supreme Court to affect how the Court decides cases; the norm guaranteeing registered voters (as opposed to state legislatures) the ability to participate in the process of electing the President by casting votes for presidential electors in the Electoral College; the obligation of those electors to vote according to the popular vote tally in their respective states; and the norm that federal officials responsible for criminal law enforcement are given a broad range of independence and discretion from the president. The rise of hyper-partisanship in the United States and the election of Donald Trump to the presidency have raised new questions about the conditions under which constitutional conventions can be maintained.  The elimination in recent years of the filibuster convention for Supreme Court appointments and lower federal court judges serves as a reminder that longstanding constitutional conventions sometimes erode or collapse.

Roundtable Papers

Roundtable Agenda

Participants

Matt Adler (Duke Law School)

Richard Albert (University of Texas at Austin Law School)

Nicholas Barber (Oxford)

Curt Bradley (Duke Law School)

Richard Fallon (Harvard Law School)

Aziz Huq (University of Chicago Law School)

Janet McLean (University of Auckland)

Gerald Postema (University of North Carolina)

David Pozen (Columbia Law School)

Richard Primus (University of Michigan Law School)

Christopher Schroeder (Duke Law School)

Neil Siegel (Duke Law School)

Mark Tushnet (Harvard Law School)

Guy-Uriel Charles (Duke Law School)

Keith Whittington (Princeton)