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New York University Journal of Legislation & Public Policy


Norms, the conventional wisdom goes, help to keep our democracy stable. And breaking norms, scholars believe, puts democracy at risk of backsliding. This Article challenges that consensus. The original historical evidence marshaled here shows that norm-breaking by civil rights reformers in Congress was critical to jumpstarting the democratization of the United States in the mid-twentieth century, ensuring passage of both the Civil Rights Act of 1964 and Voting Rights Act of 1965. Norm-breaking, the Article makes clear, is sometimes essential to democratic reform.

Leveraging these detailed case studies, the Article explains why. In preserving the status quo, norms protect existing power hierarchies. The values, ideas, and institutional arrangements that norms help to entrench are not there by happenstance. They reflect the will of the already powerful—those individuals and interests with sufficient pull to impose their values and preferences on others through institutional practice. When we valorize stability and prescribe norm adherence as a treatment for our democratic ills, we privilege (inadvertently or otherwise) the authority of those at the top over the fate of those at the bottom. In consequence, while norms may aid in protecting whatever level of democracy we have attained, that very quality may render them obstacles to further democratization. Indeed, the more work that norms do to preserve an imperfect status quo, the more likely it is that they will need to be broken to reach a new and better equilibrium. The politics of preserving democracy for some, the Article argues, are quite different from the politics of expanding democracy to others.

For these reasons, reformers today who seek to renew our democracy for a new generation cannot afford to accept the conventional wisdom that flouting norms is bad. They must instead embrace the reality that, as rights-makers, they will need to be norm-breakers. Accordingly, the Article concludes by identifying several specific legislative norms that stand in the way of expanding suffrage—chief among them the “nontalking filibuster” in the Senate and the longstanding tradition of deference to legislative parliamentarians. These practices must be changed if we are to continue to make good on our nation’s foundational democratic commitments.

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College of Law

Suggested Citation

Gregory A. Elinson, Norm-breakers, Rights-makers: Legislative Norms, Democratization and the Fight for Civil Rights, 26 N.Y.U. J. Legis. & Pub. Pol’y 65 (2024).

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