Primitive Law for Grown Ups, or: How to Do Things With Constitutional Norms

Constitutional norms or conventions are usually thought of as what H.L.A Hart famously called “primitive law” (and, similarly, Bentham called “traditionary law” which, for him, is meant for “barbarians”). The reason for this seems clear: In contrast to law, constitutional norms and conventions lack “secondary rules” and an apparatus within which they can be institutionalized as they arise in a decentralized (often unexpected) fashion and are often not enforced by courts. In this paper, I challenge this view and argue that constitutional norms and conventions do in fact have “secondary rules” by which they are recognized, changed, and adjudicated. I further argue that the acknowledging this opens up previously unexplored possibilities about ways to assist in the creation and stabilization of constitutional conventions and norms or, conversely, in the process through which they are changed or eroded. The discussion has implications for outstanding debates about the resiliency of constitutional democracy which of late turned to emphasize the role of constitutional norms.

Administrative Foreign and Security Policy

A growing number of U.S. foreign and security measures in the past two decades has targeted individuals. These individualized measures have largely been carried out by administrative agencies. The paper examines this administrative foreign and security policy phenomenon with two main aims. First, it documents the individualization trend, the administrative mechanisms that have facilitated it, and the judicial response. Second, the paper examines how administrative foreign and security policy integrates with the President and the courts. It illuminates the President’s role as chief executive and commander-in-chief, and the applicability of the influential concept of Presidential Administration in the foreign and security realm. It also informs our understanding of the role of courts in foreign and security policy, by rendering more foreign and security action reviewable in principle, and providing a justification for judicial review.

Court-Expansion in the U.S. and Abroad

This paper gives an overview of all instances of Supreme Court expansion in the U.S. and compares them cases of court-expansion abroad. I argue that the all seven U.S. statutes changing the size of the court have all sought to improve court-performance that nonetheless benefit one political party. The rules for when such changes were acceptable were widely known and accepted by both political parties. Hence, there is no historical precedent for today’s partisans of court-packing. Drawing from the cases of Turkey, Hungary, and Venezuela, I argue that court-expansion abroad is not analogous to current partisan proposals in the United States and that the role of court-packing in the establishment of semi-authoritarian regimes has been greatly exaggerated. Just as advocates of court-packing are wrong to cite U.S history, so too are opponents incorrect to draw parallels with court-packing outside the United States.