Conventional Constitutional Law

Abstract

Judges share conventional understandings about what the Constitution requires, both of themselves and of other constitutional actors. These informal conventions lead to formal decisions, which are then centrally enforced by the state in the same manner as all other judicial decisions. This recognition of conventional constitutional law has three critical implications for our understanding, critique and reform of constitutional law. First, it is unlikely that judges will refer explicitly to their own conventions in their decision-making; however, scholars cannot provide an accurate explanation of constitutional law if they do not account for the possible role of conventional constitutional law. Second, although there is nothing inherently objectionable in conventional law, it is problematic that the interaction of conventional and written constitutional law allows the conventions of a judicial and legal elite attain the force of law for other people. Third, in some circumstances, it may be more effective to change constitutional law by changing how we select judges than by formally amending the text of the Constitution.