Norms versus Laws
By Albert B. Kelly
With this past President’s Day, there were a few programs on
radio and television about the presidency and the role of various presidents in
our nation’s history. One program I happened upon was “On the Media” which is a
weekly mainstay of National Public Radio (NPR). The specific segment of the
program that caught my attention was focused on the “norms” in the institutions
of our government.
By “norms”, we are not talking about things that are part of
any law nor are we talking about rules that have been passed or adopted in any
official way. What we’re really talking about when we speak of “norms” are the
customs, the practices and the traditions that have always been observed and
that we’ve generally just taken for granted because “it’s always been done that
way”.
One example we might know from our nation’s history is the
idea that a president only serves 2 terms in office. From our first president
George Washington up to the thirty-first president Herbert Hoover, presidents
served only two terms in office. This was not written anywhere and it wasn’t
part of any law, it was simply the custom set down by George Washington and it
was observed by all who came after him until FDR decided to run for a third
term in 1940 and then a fourth term in 1944.
FDR felt like he had good reason for breaking with the
two-term precedent including the lingering effects of the Great Depression and
the outbreak of war in Europe but
despite this, in1940 after FDR finally made his intentions known about a third
term, there was much pushback and outright anger from various quarters. Keep in
mind that FDR wasn’t breaking any law at the time, just historical “norms”. In
response, Congress in 1947 approved the 22nd amendment to the
Constitution limiting a president to 2 terms.
In this case, a constitutional amendment was needed because
norms and customs were disregarded or set aside. But there are just as many
instances in today’s world where we think past customs and norms will serve a
“checks and balances” role only to find that these are not up to the job.
For example, there is this idea that the Justice Department,
headed by the Attorney General, is above partisan politics and independent from
the White House. There is no law stating this and there is nothing codified
anywhere to insist on this independence, but over the last several decades, at
least since Watergate, this separateness and independence was the norm and the
custom.
That norm was shattered very recently when the president
voiced his criticisms, while at roughly the same time senior officials at the
Justice Department overruled career federal prosecutors to recommend a lighter
sentence for Roger Stone, a longtime friend of the president, who was convicted
of obstructing justice in this whole Russia mess.
The reality is that as distasteful and potentially conflict-ridden
as some may find it, this intervention didn’t break any laws or violate any
statutes- only norms and customs. The same holds true for a presidential
candidate releasing his or her tax returns- for many years it always done and
it was expected, but there is no law or statute requiring that a candidate
release their tax returns. The same for presidential pardons – norms suggest
using pardons to correct miscarriages of justice for common folk as opposed to
shielding cronies- but nothing requires this.
We are a nation of laws, but we’re equally a nation of norms,
customs, and precedents. As long as everyone agrees to follow the unwritten
stuff, the thing we call our democracy works well. But when the unwritten stuff
is disregarded for whatever reason, we find out just how vulnerable and fragile
we are.
Many would argue that we’re already overregulated with
statutes and far too much government. But I fear that regulation is all that’s
left for us if we’ve gotten to the point where we’re unwilling to submit to the
norms and practices developed and handed down over the generations of the
republic.
And maybe that’s what this next election is about - not so
much where one candidate or the other stands on a particular issue because
conditions on the ground can change, but whether a given candidate possess an
adequate understanding and appreciation of just how vulnerable and fragile the
institutions of our government can become when historical norms are disregarded
for short term considerations.