Ashraf Ahmed (Columbia Law School) has posted The Conventional Constitution on SSRN. Here is the abstract:
The past decade has prompted a surge of scholarship on constitutional conventions: informal practices thought to be constitutionally significant. The resulting literature reflects a wide range of methods and priorities. But it has no underlying theory of what makes a constitutional convention conventional or constitutional. Drawing on philosophy, this Article advances such a theory, explaining what constitutional conventions do and what they are like. It shows that constitutional conventions are normative, contingent, and arbitrary practices that implement constitutional text and principle. And it animates constitutional conventions through case studies of blue slips, court-packing, and executive non-interference with law enforcement. It concludes by considering the role of constitutional conventions in Supreme Court doctrine and theories of constitutional interpretation that consult historical practice as a source of law.
Highly recommended.